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Copyright, 1903, 


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The development of American p&litical theories 
has received surprisingly little attention from stu- 
dents of American history. Even the political 
ideas of the Revolutionary fathers and the tenets 
of such important schools as those represented by 
Jefferson and Adams have not been carefully ana- 
lyzed or put in their proper perspective. The 
political theory of the controversies over slavery 
and the nature of the Union has generally been 
presented from the partisan point of view, while 
recent tendencies in political thought have received 
no adequate notice. 

In explanation of this fact, it might be said that 
until very recent times but little interest has been 
manifested in systematic politics. But while it is 
true that Americans have never developed systems 
of politics after the philosophic fashion of the 
Germans, there has been no dearth of political 
theory from the days of the Puritans to the present 
time. Seldom worked out by political scientists 
or philosophers, American political ideas have 
generally taken shape in connection with some 
great question of national policy which has seemed 




to require a broad theoretical basis for either con- 
demnation or approval. Conspicuous examples 
of this are found in the discussion over the Revo- 
lution, over slavery and secession. These political 
theories have played an important part in our 
national hfe, and are closely woven into the fabric 
of American history. Of particular significance 
are they in viftw of the fact that they represent 
the philosophy under which has been developed 
the mightiest democracy of modern times, or of 
any time. 

It is, then, the purpose of this work to present 
a description and analysis of the characteristic 
types of political theory that have from time to 
time been dominant in American political life. 
An effort has been made throughout to discuss 
these theories in their relation to the peculiar con- 
ditions under which they were developed, and to 
keep in sight the intimate connection between the 
philosophy and the facts that condition it. Like 
all other political theory, American political ideas 
are of little importance aside from the great his- 
torical movements of which they are an organic 

In the preparation of this volume, use has been 
made of several articles already published else- 
where. “ Paine’s Political Theory ” appeared in 
The Political Science Quarterly for September, 
1899, and “The Political Theory of Jefferson” 
in the same magazine for March, 1902. “ The 



Political Theory of Calhoun ” was printed in The 
American Journal of Sociology for May, 1902; and 
the chapter on political theory in relation to the 
nature of the Union is an expansion of Chapter 
IX in my monograph on “ The History of the 
Theory of Sovereignty since Rousseau ” (in Co- 
lumbia University Series in History, Economics, 
and Public Law, Vol. XH, No. 4, 1900). 

This study is the outgrowth of investigations 
begun in the Seminar on American Political Phi- 
losophy given by Professor Dunning in Columbia 
University, 1896-1897; and the writer wishes to 
acknowledge his deep sense of obligation for the 
inspiration then given and for subsequent encour- 
agement and assistance in the prosecution of this 
work. Acknowledgment is also due to Professor 
Judson, Professor Jameson, and Professor Freund 
of The University of Chicago, to Professor Hart of 
Harvard, Professor Willoughby of Johns Hopkins, 
Professor Macdonald of Brown, and others who 
have kindly read parts of the manuscript and 
offered invaluable suggestions. 




The Political Theory of the Colonial Period 


1. Introductory considerations ..... l 

2. Basis of the Puritan System 2 

3. Theocratic elements in Puritanism ... 5 

4. The theory of the relation between church and state 7 

5- Democratic elements in Puritanism . . . ij 

6. Puritan idea of liberty and equality ... 23 

7. Conclusion as to the Puritans .... 26 

8. Political ideas of the Quakers .... 27 

9. The rise of democratic sentiment in the colonies . 32 

10. Summary 36 


The Political Theory of the Revolutionary 

1. Introduction — Sources of information — Historical 

considerations — Constitutional theory . 38 

2. Fundamental principles of the Revolution — Natural 

rights — The social contract — Popular sover- 
eignty — The right of revolution — The purpose 

of government 46 

3. Typical Loyalist theory 63 

4. Constructive theory of the Patriots : 

Monarchy and aristocracy — Doctrine of dele- 
gated powers and its application ... 69 

(i) Weak government; (2) Separation of 
powers ; (3) Short term of office 77 




Theory and practice as to suffrage 
Qualifications for office 
Church and state 

5. Source of Patriot ideas . 

6. Conclusions 


TbE Reactionary Movement 

1. Historical considerations . . . . . 

2. The Constitutional Convention and the Constitution 

3. The theory of the Federalist : 

General considerations 

Democracy and territorial area .... 

Forms of government 

The division of governmental powers . 

The legislature — The executive — The judi- 

Guaranties of liberty 


4. The theory of John Adams : 

Distrust of democracy 

Theory of aristocracy ...... 

Balance of powers 

5. Summary 


The Jeffersonian Democracy 

1 . Characteristics of the radical movement . 

2. Jefferson and natural rights . 

3. Means of perpetuating the social contract : 

(1) Revolution 

(2) Periodical revision of constitutions 













1 19 


* 3 ° 









4. Attitude toward monarchy . . . .153 

5. V.ttitude toward aristocracy 154 

6. Analysis of Jeffersonian democracy . . -157 

7. Comparison between Adams and Jefferson . .161 

8. Sources of Jefferson’s theory 167 

g. Conclusions 171 

10. Summary of the epoch 173 


The Jacksonian DEMOCRAcy 

1. Introductory considerations 176 

2. The development of the executive power . .178 

In the national government . . , .178 

In the states 183 

3. The spoils system and rotation in office . . .184 

4. Abolition of property qualifications for office-holding 

and suffrage 188 

5. Religious liberty 193 

6 . Democratization of the judiciary .... 197 

7. Summary of political changes . . . • ^99 

8. Reactionary tendencies in political theory . . aoo 


The Political Theory of the Slavery 


The Anti-slavery Theory 

1. The theory of the radical abolitionists . 

2. The philosophic argument 

3. Lincoln’s argument .... 

4. Conclusion 

. 203 






The Pro-slavery Argument 

1. Introduction 

2. Theory of inequality .... 

3. Theory of natural rights 

4. Concept of liberty . ... 

5. Relation between superioi and inferior races 

6. Slavery and democracy 

7. Conclusions 

General conclusions on the slavery controversy 


Political Theory in Relation to the Nature 
OF THE Union 


1. The compromise theory 

At the time of the adoption of the Constitution . 

Down to 1830 

Madison’s theory of the genesis of the Union 

2 . The state-sovereignty theory 

Tucker’s contract theory 

Calhoun’s theory of nullification .... 
The theory of secession 

3. The Nationalist theory 

Webster’s theory 

The later Nationalists 

Burgess’s theory 

4. Summary of the arguments 


Recent Tendencies 

1 . General characteristics of recent theory . 

2. Attitude toward the contract theory 





















3 Natural rights 309 

4. Civil liberty 31 ! 

5. Functions of the state 313 

6. The separation of governmental powers . . . 322 

7. Distinction between state and government . . 325 

8. Modern democracy 327 

9. Sodolo^cal contributions 329 

10. Conclusions 331 


Conclusion 334 




A STUDY of American political theories may 
appropriately begin with an examination of the 
ideas of the colonists who laid the foundations 
upon which the national structure now rests. In 
view of the fact that the Puritan ideals, political 
and moral, have been so potent a force in the 
development of American national characteristics, 
attention will first be directed to the Puritan 
political tenets. 

Puritanism was primarily a religious and not a 
political movement.^ Its central doctrine was that 
the spiritual element in worship is of far greater 
importance than the ceremonial element. The 

1 A complete discussion of the Puritan theory is given by H. L. 
Osgood in the Political Science Quarterly, Vol. VI, “ The Political 
Ideas of the Puritans.” See also The Rise of Democracy in Old 
and New England, by Charles Borgeaud; G. E. Ellis’s Puritan 
in Massachusetts ; and the standard histories of this period : 
in particular, Doyle’s Puritan Colonies and J. G. Palfrey’s Historj 
of New England. 





Puritans condemned a ritualistic service as not 
only unnecessary and superfluous, but positively 
injurious and sinful ; and they demanded a style 
of worship from which the ceremonial features 
were as nearly as possible eliminated. The 
Anglican Church they bitterly denounced for its 
failure to carry through the desired reforms, and 
its retention 'of so many of the features of the 
Roman worship. Theologically, Puritanism was 
closely allied to Calvinism, and it resembled Calvin’s 
system on the political side also. In common with 
the other adherents of the Reformation, the Puri- 
tans denied the binding force of Church tradition, 
precedent, and law, asserting that the Scriptures are 
the only authoritative guide of human conduct. In 
a study of Puritan politics it is essential, therefore, 
to remember that the spirit and purpose of the 
Puritans’ movement was only incidentally political. 
Their aim was to found a spiritual, not a political, 
organization — a church rather than a state. They 
were interested above all things in the true wor- 
ship of God, which meant to them, of course, the 
Puritan style of worship. 

It is important to observe at the outset the basis 
upon which the Puritans rested their common- 
wealth. Having rejected the authority of the Church 
and ecclesiastical law and precedent, they relied 
solely upon the Scriptures as a guide for all con- 
duct, public as well as private, and considered the 
Bible as the only proper foundation upon which 


either a state or a church could rest. They a*"- 
tempted to deduce from the Old and New Testa 
ments their whole system of public law, finding in 
these writings, expressly or by implication, authority 
for the government as organized and administered. 
As their theology and their form of church govern- 
ment rested upon a scriptural basis, so must their 
political theory and their state have the same foun- 
dation. This idea was well stated by John Eliot 
in his work on The Christian Commonwealth ; or. 
The Civil Policy of the Rising Kingdom of Jesus 
Christ^ when he said that “ there is undoubtedly a 
form of Civil Government, instituted by God him- 
self in the holy Scriptures, whereby any Nation 
may enjoy all the ends and effects of Government 
in the best manner, were they but perswaded to 
make trial of it. We should derogate from the 
sufficiency and perfection of the Scriptures, if we 
should deny it.” In the establishment of New 
Haven Colony, one of the questions submitted to 
those participating was, “Whether the Scriptures 
doe holde forth a perfect rule for the direction and 
government of all men in all duties which they are 
to perform to God and men, as well in the govern- 
ment of families and in the Commonwealth, as in 
the matters of Church and to this all assented. 
This idea runs through the Puritan thought of that 
time. They devoutly believed that somewhere in 

' Mass. Historical Society Collections, Third Series, Vol. 9, p. 134. 

* New Haven Records, I, 12 (1639). 



the Scriptures there must be a rule of public as 
well as of private conduct, and they further believed 
that they had discovered and were applying this 
rule in the development of their political institu- 
tions. The particular part of the Bible upon 
which they relied for this purpose was the Old 
Testament, with its frequent references to the 
political experiences of the Children of Israel. 
This was a rich mine of precedent, to which the 
Puritans frequently resorted when in need of such 
support to justify their conduct.^ 

It is not to be assumed, however, that the Puri- 
tans really constructed their entire political system 
from an interpretation of the Scriptures.® They 
brought with them to the New World the English 
common law, English political precedent and 
tradition of centuries’ growth. This was beyond 
question the real basis of their system, and the 
additions to this from interpretation of the Scrip- 
tures were less important than the Puritans them- 
selves thought. It would be near the truth to 
say that they did not begin with the Scriptures 
and build up a complete system, but that they 
attempted to justify a system already in existence 

^ For example, Cotton said that no instance could be given ** of 
any capital Law of Moses, but is of moral (that is of general and 
perpetual) equity, in all Nations, in all Ages. Capitalia Mosis 
politica sunt aeterna,” Bloudy Tenent^ Chap. LIII. 

* O. S. Straus, in the Origin of the Republican Form of Govern^ 
mtnt in the United States of America^ maintains this proposition. 


by finding for it a scriptural basis. In the general 
tendency to test all things by Scripture, it was 
only natural that the state should be subjected to 
the same treatment, and that an attempt should 
be made to find a scriptural model for political 

The system of government adopted by the Puri- 
tans was what might perhaps be called theocratic 
in character. The most cursory view could not fail 
to reveal the predominant position of the clergy. 
From the beginning, the life of New England was 
largely under the influence of the ministers. In 
many cases men of marked learning and sagacity, 
whose Puritan morals and theology did not conflict 
with shrewd worldly wisdom, they dominated the 
political as well as the intellectual and religious life 
of the community. They were consulted upon all 
matters of public policy, such as Indian affairs or 
relations with the mother country ; they frequently 
preached political sermons bearing directly on 
public questions ; there was never, perhaps, a 
body of clergy that exercised greater influence 
on affairs of state than did these New England 
leaders. Especially in Massachusetts Bay, they 
established an ecclesiastico-political rdgime, recall- 
ing in many of its features the Geneva system of 
John Calvin. In two of the colonies member- 
ship in some approved church was essential to full 
citizenship. Only those who were church members 
could become “ freemen ” in Massachusetts Bay 



and in New Haven, and it is not likely that other 
than church members were actually received in 
Plymouth and Connecticut. As late as 1660 the 
General Court of Mas.sachusetts Bay resolved that 
no person could become a “ freeman ” who was not 
in full communion with some orthodox church. 
The exclusive character of the Massachusetts Bay 
system is shown by the fact that down to 1674 
only 2527 were admitted as freemen, one-fifth of 
the total number of adult males. ^ Of the other 
features in the theocratic regime it is not necessary 
to speak at length. The Sabbath Laws, taxation 
for purposes of church support, compulsory attend- 
ance on church services, the anti-heresy acts, — 
all were part of the general system in which the 
civil power was invoked to stimulate the religious 
sentiment and practice of the community. The 
same tendency is also shown by the attitude of the 
Puritans toward adherents of other religions. In 
the controversy with Roger Williams, with the 
Antinomians, with the Quakers and the Baptists, 
a determination was manifested to preserve the 
Puritan type of religion by force if necessary. 
Liberal use was made of fines, imprisonment, dis- 
franchisement and banishment as means of grace 
for the spiritually perverse. The Puritans them- 
selves were dissenters from dissenters, but they did 
not intend that the process of dissent should be 
carried farther. 

* G. E. Ellis, Puritan Age, p. 203. 


Their theory of the relation between church and 
state was clearly brought out in the famous con- 
troversy between Roger Williams and John Cotton, 
the spokesman for the Massachusetts theocracy.^ 
An examination of this controversy may seem 
somewhat remote from the field of political theory, 
but only through such an inquiry is it possible 
to arrive at a satisfactory understanding of the 
political ideas of the Puritan. The gist of the 
Williams-Cotton debate is found in three pam- 
phlets occasioned by the banishment of Williams. 
These were. The Blotidy Tenent of Persecution for 
Cause of Conscience (1644), Williams; The 
Bloudy Tenent washed, and made white in the 
Blotid of the Lambe (1647), by Cotton; The 
Bloudy Tenent yet more Blotidy (1652), by 

Two of the most significant topics discussed may 
be considered here ; first, the nature of the church 
and the state ; second, the extent of the civil power 
in religious affairs. First, then, the theory as to 
the nature of the church gives the key to the under- 
standing of the entire dispute. Williams’s conten- 
tion was that the state is distinct from, and may 

1 See Doyle, Puritan Colonies^ Vol. I, Chap. IV, for an account 
of this affair. 

^ See also the Cambridge Platform of 1648, Chap, 16, This was 
a statement of church doctrine made by a synod representing the 
four New England colonies. See also Cotton Mather, Magnaliox 
Vol. II, Book 5. 



exist without, the church, as, for example, among 
heathen people. “The church,” said Williams, 
“is like unto a corporation, society, or company 
of East India or Turkic merchants, or any other 
societie or companie in London, whichmay . . . wholly 
breake up and dissolve into pieces and nothing, and 
yet the peace of the citie not be in the least meas- 
ure impaired or disturbed.” ^ This is true, be- 
cause the “ essence ” of the church and the state 
is different, and consequently the religion may be 
radically changed, while the government of the 
city or state remains unchanged ; or the govern- 
ment may be altered without affecting the char- 
acter of the religion. Ephesus may cease to 
worship Diana, and still be Ephesus; or it may 
happen that there are different religions in the 
same city, the aim of all these religions being dis- 
tinct from that of the state. 

Cotton, for his part, agreed that the church is a 
separate society, distinct from the state ; but held 
that the church is the chief society in the state, 
and that the growth and welfare of the state are 
dependent on the purity of the church. The church, 
although not the “ essence ” of the state, neverthe- 
less “ pertains to the integrity of the city ” ; it is 
among the “ conservant causes ” of the state, and 
cannot be broken up without affecting profoundly 
the welfare of the body politic.* Cotton conceded 

^ The Bloudy Tenetti, Chap. VI. 

* Bloudy Tentnt washed and made whiter Chap. VI. 


that there are historical examples of states which 
have flourished under heathendom; but he de- 
clared that after the true church is once intro- 
duced, then this true worship must be protected 
by the state. 

The crucial question in the controversy was 
that concerning the proper extent of the power 
of the civil magistrate in religieus matters. 
Williams held that the true church is spiritual 
in nature, and, as such, has no need of the 
support of the civil magistrate in order to 
maintain its proper position. It does not re- 
quire worldly means of defence, but should 
use only the spiritual weapons, such as “the 
breastplate of righteousness,” “ the helmet of 
salvation,” “the sword of the spirit.”* Civil 
magistrates had never been made defenders of 
the faith in the Scriptures, and the omission 
shows that there had been no intent to confer 
such authority on them. The civil officers should 
not proceed to organize churches ; they should not 
inflict punishment on those adjudged heretics, or 
impose civil penalties or disabilities for any reli- 
gious reason. Williams contended that if civil 
magistrates had rightful power in spiritual affairs, 
then even in a barbarous Indian tribe rightful juris- 
diction over the church of Christ would be vested 
in the Indian civil authorities, and the Christian 
religion would be entirely at the mercy of rulers 

‘ The Btoudy Tenent of PersecuHon, Chap. XLV. 



with pagan consciences.^ It is clearly evident, then, 
that Williams’s view of the state was decidedly 
secular in character. He limited its activity in 
religious affairs to ‘what were called at that time 
“breaches of the second table.”® Transgression 
of any of the last six commandments might be 
punished by the state, but over violations of the 
commandments in the first table they should have 
no jurisdiction. “Scandalous (offence) against 
parents,” he said, “against magistrates in the 
fifth command, and so against the life, chastity, 
goods, or good name in the rest, is properly trans- 
gression against the civil state and common weal, 
or the worldly state of men.” ® Such offences the 
government may rightfully punish, but those crimes 
which concern the relations of man to God it should 
not attempt to suppress. They are spiritual in 
nature, and civil penalties cannot properly affect 
them. On this ground Williams denounced in vig- 
orous terras the treatment to which he and others 
had been subjected as wholly unwarranted and 

Cotton replied to these arguments that “ it is a 
carnal and worldly, and, indeed, an ungodly imagi- 
nation, to confine the magistrate’s charge to the 
bodies and goods of the subjects, and to exclude 

^ The Bloudy Tenent of Persecution, Chap, XCII. 

“ The hrst four commandments, covering the duties of man to 
God, were called the “ first table”; the last six, covering the rela- 
tions of men to each other, constituted the “ second table,” 

» Ibid. Chap. LVl. 


them from the care of their soules.”^ He main 
tained that it is the evident duty of the magis- 
trates to use all available means to prevent the 
pollution and corruption of the church, and to 
strive in every way to preserve its purity.* He 
even attempted to show that laws about religion 
are, strictly speaking, civil laws. “Whatsoever 
concemeth the good of the city and ‘'the propuls- 
ing of the contrary,” is a civil law, said he. “ Now 
religion is the best good of the city, and therefore 
laws about religion are truly called civil lawes.” * 
But Cotton’s reasoning would have been inade- 
quate and ineffective from the Puritan point of 
view, unless supported by scriptural authority. 
Unable to find any express warrant in the New 
Testament, Cotton met the difficulty by showing 
that there was not authority in that part of the 
Bible, even for the punishment of such crimes as 
adultery and murder, and that consequently it 
must be assumed that a rule of action is else- 
where contained in the Scriptures. Such author- 
ity is found in the “ Laws of Moses and the 
Prophets who have expounded them in the Old 
Testament.”* He maintained that all the capital 
laws of the Mosaic Code are of universal validity, 
and that whatever the kings of Israel inflicted on 
transgressors of either the first or the second table, 

1 The Bloudy Tenent washed and made white, Chap. XXXIII. 

* Ibid, Chap. XXXV. > Ibid. Chap. LXVII. 

* Ibid. Chap. LXXIII. 



was a pattern and example to Christian magiSi 
trates.^ Thus basing himself on the Mosaic 
Law, Cotton found abundant sanction for any 
measures required to preserve the peace and 
purity of the church. Such phrases as, “Thou 
shalt surely kill him . . . because he hath sought 
to thrust thee away from the Lord thy God," 
seemed to fiim to justify almost any means that 
might be used. 

It is evident, then, that Cotton was a thorough 
believer in the doctrine that it is the right and duty 
of the magistrates to punish transgressions against 
the commandments contained in either of the 
“ tables.” In addition to the offences specified by 
Williams, Cotton included many others. He 
declared that one who holds an “ erroneous doctrine 
or practise ” is a violator of the civil law ; “ he who 
refuseth to subject his spirit to the spirit of the 
Prophets in a holy Church of Christ ” comes under 
the same category. Even such offences as the 
“ censorious reproach ” of one who rebukes our 
spiritual error, or “ rejecting communion ” before 
one is convicted, may be looked upon as a disturb- 
ance of the peace and hence as falling under the 
jurisdiction of the civil magistrates.® In short. 
Cotton’s theory was that the state should guarantee 
the observance of church law and ceremony, just 
as if they were its own enactment, and that to 
accomplish this purpose any exercise of force 
1 Ibid. Chap. XXXV. » Ibid. Chap. VII. 


would be perfectly justifiable. As he phrased it 
on one occasion, “legall terrours are ordinary 
meanes blessed of God to prepare hard and stout 
hearts to conversion.” ^ 

He was far from admitting, however, that he 
ustified persecution “ for cause of conscience,” 
as Williams alleged. On the contrary, he declared 
that the conscience is sacred and inviofeble and not 
to be disturbed, whether it be conscience “ rightly 
informed ” or “ conscience misinformed.” ^ A sig- 
nificant exception was made, however, in case 
“ it may appear that the erroneous party suffereth 
not for his conscience, but for his sinning against 
his conscience.” ^ In other words, individuals are 
not punished because they follow conscience, but 
because they refuse to obey its dictates; not be- 
cause they are blind, but because they wilfully shut 
their eyes. Of the same character is the argument 
that “to persecute is to punish an Innocent; but 
a heretic is a culpable and damnable person.” * 
Cotton realized that the action of the magistrates 
might result in the production of hypocrites; but 
“ better tolerate Hypocrites and Tares than Bryars 
and Thornes.”® Or as elsewhere expressed : “Better 
a dead soule be dead in body, as well as in Spirit, 
than to live and be lively in the flesh.” ® Based 
on like logic was the argument that in reality men 
are never compelled to worship, for, “ though teach- 

1 Ibid. Chap. IX. ^ Ibid. Chap. X. ’ Ibid. 

* Ibid. Chap. LXV. » Ibid. Chap. XXXIX. ® IHd. Chap. XL 



mg and being taught in a Church estate be Church 
worship, yet it is not a Church worship but to such 
as are in a Church estate.” ^ 

Such was the character of Cotton’s theory, and 
it was typical of Puritanism in the early days of 
settlement in America. It was the theory of men 
to w'hom the preservation of the Puritan religion 
was an object of paramount importance — an end 
for which they had already given up much and 
for which they were ready to sacrifice still more. 
They were thoroughly convinced that it was the 
duty of the state to uphold and support the church 
at every possible point, and they acted on this 
conviction.^ In so doing they were neither in 
advance of nor behind the theory and practice of 
their time, but simply followed the custom of all 
the states of that day. From one point of view it 
may seem strange that the Puritans, fleeing from 
persecution in England, should prove so ready to 
persecute in turn those who dissented from Puri- 
tanism. What the Puritans objected to, however, 
was not the use of force to maintain a religion, but 

1 Ibid. Chap. LXX. 

- In the Massachusetts Body of liberties it was declared that 
" Civill Authoritie hath power and Ubertie to see the peace, ordi- 
nances and Rules of Christ observed in every church, according to 
his word, so it be done in a Civill and not in an Ecclesiastical way.” 
Sec. 58. The converse right was not given to the church, however. 
It was provided that, “ No church censure shall degrade or depose 
any man from any Civill dignitie, ofEce or Authoritie he shall have 
in the Commonwealth.” Sec. 60. 


the use of force to support any other than the true 
religion. Regarding their own form of worship 
as the true one, they considered it perfectly just to 
call on the civil power to preserve it, even by force 
if necessary. 

Having considered the Puritan theory of the 
relation between church and state, we now turn 
to an inquiry into the question how far Puri- 
tanism was democratic. It would be wide of 
the truth to assert that at the beginning there 
was any general enthusiasm for democracy 
as such. John Cotton on one occasion (1644) 
denounced democracy as “ the meanest and worst 
of all forms of government,” and on another 
occasion openly indorsed theocracy.^ A propo- 
sition for the establishment of an aristocracy 
was made to Massachusetts Bay in 1634, and 
was rejected only because it involved the aban- 
donment of the church-membership requirement 
for suffrage. “ Two distinct ranks, we willingly 
acknowledge from the light of nature and scrip- 
ture,” they said, “ the one of them called Princes 
or Nobles or Elders (amongst whom the gentle- 
men have their place); the other the people. 
Hereditary dignity or honors, we willingly allow to 
the former, unless by the scandalous and base con- 

^ Letter of Cotton to Lord Say and Seal, 1636, in Appendix to 
Hutchinson’s History of the Colony of Massachusetts Bay, Vol. I. 
The Scriptures, he said, establish “ theocracy as the best form of 
government in the commonwealth, as well as in the church." Pg.49& 


versation of any of them, they become degenerate.”' 
It is also notable that only a part of the inhabitants 
of the colonies were made “ freemen ” ; in the case 
of Massachusetts, only about one-fifth. “ Inhabit- 
ants ” and “ freemen " were sharply distinguished 
and were accorded different degrees of political 
privilege. All of these features were undemo- 

Other parts of the Puritan system show more 
democratic tendencies. Among these was the 
emphasis on local self-government, finding expres- 
sion in the town-government which has played so 
conspicuous a part in American constitutional de- 
velopment. Furthermore, careful provision for 
adequate protection of civil rights was made by the 
colonies in such notable instruments as the Body 
of Liberties in Massachusetts Bay (1641) and the 
Fundamental Orders of Connecticut (1639). These 
were largely, however, the guaranty of the ordinary 
rights of Englishmen, and consequently cannot be 
regarded as exclusively Puritan in character. 

A democratic tendency is seen in the method 
adopted in the formation of new communities by 
the Puritans. The use of the contract as a basis 
for the establishment of a “ body politic ” was a 
widespread practice in the New England colonies. 

' Ihid. 1, 490 ff. This was somewhat qualified by the state- 
ment that, “ Hereditary honors both nature and scripture doth 
acknowledge (^Eccl. xix. 17), but hereditary authority and power 
standeth only by the civil laws of some commonwealths.” Ibid. 
493 - 


The first of these was the famous Mayflower cov- 
enant of 1620. Here it was declared that the 
indersigned, “ Do by these Presents solemnly and 
mutually, in the Presence of God and one another, 
covenant and combine ourselves into a civil Body 
Politick, for our better Ordering anid Preservation, 
and Furtherance of the Ends foresaid ; and by 
Virtue hereof do enact, constitute and frame, such 
just and equal Laws, Ordinances, Acts, Constitu- 
tions, and Officers from time to time, as shall be 
thought most meet and convenient for the general 
Good of the Colony ; unto which we promise all 
due Submission and Obedience.” ^ 

Another illustration of the same principle is 
afforded by the example of Connecticut in the 
adoption of the “ Fundamental Orders.” In this 
agreement it was stated that: “We, the Inhabit- 
ants and Residents of Windsor, Hartford, and 
Wethersfield . . . doe associate and conjoyne our- 
selves to be as one Publick State or Common- 
wealth and doe, for ourselves and our successors 
and such as shall be adjoyned to us att any time 
hereafter, enter into Combination and Confedera- 
tion together to mayntayne and presearve the lib- 
erty and purity of the gospel of our Lord Jesus, 
which we now profess, as also the discipline of the 
l^hurches, which according to the truth of the 

^ Poore, Consiii-uiions and Charters, I, 931. But they did not 
profess political independence. “ We . . the Loyal Subjects of 
our dread Sovereign Lord, King James, etc.” 


said gospel is now practised amongst us, as also in 
our Civell Affaires to be guided and governed 
according to such Lawes, Rules, Orders and de- 
crees as shall be made, ordered and decreed, as 

In Rhode Island there were many similar con- 
tracts made, as, for instance, the agreement at 
Providence in 1636, and at Portsmouth in 1638. In 
the latter the form of the covenant was as follows : 
‘‘ We whose names are underwritten do here 
solemnly in the presence of Jehovah incorporate 
ourselves into a Bodie Politick and as He shall 
help, will submit our persons, lives and estates 
unto our Lord Jesus Christ.’’^ 

It is now necessary to inquire into the theory 
on which these contracts rested. The discussion 
of this question, however, involves an examination 
of the theory on which the New England churches 
were constructed. These ecclesiastical organiza- 
tions, it appears, were formed on what is known 

^ Connecticut Records^ I, 20. 

® R. /. Records, I, 52. In the Newport Declaration of 1641 is 
found one of the boldest of democratic assertions. It is here pro- 
claimed that “ The Government which this Bodie Politick doth attend 
unto in this Island and the Jurisdiction thereof, in favour of our 
Prince is a Democracie or Popular Government ; that is to say it 
is in the power of the Body of Freemen orderly assembled or the 
major part of them, to make or constitute just Lawes, by which they 
will be regulated, and to depute from among themselves such mim 
isters as shall see them faithfully executed between man and man.’ 
Ibid^ 1, 112. 


as the “ Separatist ” plan ; namely, by voluntary 
agreement between a number of individuals to 
constitute themselves as a church. This was the 
method followed by the Separatists in England, 
who believed that the church is not formed by 
action of the state, or by virtue of apostolic suc- 
cession, but is merely a number of believers under 
a covenant with God. Although the NSw England 
Puritans were not all Separatists while in England, 
they became so almost as soon as they reached 
this country,^ and proceeded to adopt the cove- 
nant as the proper method of forming a church. 
Official recognition of this idea was given in the 
Cambridge Platform adopted in 1648, when refer- 
ence was here made to the “ visible Covenant, 
Agreement or Consent, whereby they give them- 
selves unto the Lord, to the observing of the ordi- 
nances of Christ together in the same society, 
which is usually called the Church Covenant.”* 
This covenant was described as the same as that 
which made Abraham and the Children of Israel 
the people of God, and was declared to have 
the force of constituting societies of believers as 

^ See the case of the Salem church, 1629. 

2 Chap, IV, § 3. For a full discussion of these church cove- 
nants, see Williston Walker, The Creeds and Platforms of Congre^ 
gationalisni (1893); classic work by H. M. Dexter, 

Congregationalism as seen in its literature. The Cambridge 
Platform is given in Walker, pp. 194-237. 



A remarkably clear and definite statement ol 
the contract idea was made in a work by the 
famous Connecticut divine, Thomas Hooker, — 
A Survey of the Summe of Church Discipline 
(1648). The reasoning of Hooker, to which 
almost no attention has been given, is notable for 
its early exposition of the contract theory and the 
way in which it anticipates such classic writers as 
John Locke. Hooker urges that all men are ec- 
clesiastically equal, and where every man remains 
uncontrolled there must follow the “ distraction and 
desolation of the whole.” “ In the building,” said 
he, “ if the parts be neither mortised nor brased, 
as there will be little beauty, so there can be no 
strength. Its so in setting up the frames of 
societies among men, when their minds and 
hearts are not mortised by mutuall consent of sub- 
jection one to another, there is no expectation of 
any successful proceeding with the advantage to 
the public.”^ “Mutual subjection,” he declares, 
“is as it were, the sinewes of society, by which it 
is sustained and supported.”^ He calls attention 
to two classes of covenant, the explicit and the 
implicit, and indicates a preference for the explicit 
agreement.^ The effect of this contract is to 
make every part subject to the whole and bound 
by its orders. Nevertheless, the people still re- 
tain “ the power of Judgment over each other ” 
and hence they proceed against any officer “that 
1 Survey, p, 188. ^ Ibid. Cf. p. 50. * Ibid 47. 


goes aside." This they do, “ though not by any 
power of office, for they are not officers, but by 
power of judgment which they do possess.” ^ 
This is a striking anticipation of the theory of 
revolution, later developed by John Locke.* In 
the one case the theory is applied to the church, 
however, and in the other to the state. 

The idea of the contract as the basis of associ- 
ations was not peculiar to Hooker, but was com- 
mon to the New England Puritans of his day. In 
defence of their form of church organization, gov- 
ernment, and discipline, they asserted again and 
again that the contract is the method by which all 
associations are formed. “ All voluntary relations,’’ 
it was said in the Apologie^ '* all relations which are 
neither natural nor violent are entered into by way 
of covenant.” Hooker stated the idea with great 
clearness and force, but he spoke only as a repre- 
sentative of the general opinion in New England.* 
In the face of strong opposition from England, 
the Puritans defended the formation of churches 
through contract, the election of pastors and 

^ Ibid. 192. The Cambridge Platform declares that “If the 
Church have power to chuse their officers and ministers, then in 
case of manifest unworthiness and delinquency they have power 
also to depose them.” 

2 In the second of his Two Treatises of Government. 

® An Apologie of the Churches in New England for Church 
Covenant (1639), by Richard Mather. 

^ On this subject see John Cotton, The Way of the Churches of 
Christ in New England (1645); The Way of Congregational 



teachers by the people, the rule of the majority in 
church affairs, the right of the congregation to dis- 
cipline or dismiss their ecclesiastical head.^ Fre- 
quent reference was made to the contracts of Old 
Testament days; for example, “Jehoiada made a 
covenant between the Lord and the king and the 
people ; that they should be the Lord’s people ; 
between the king also and the people ” (II Kings 
xi: 17). Another similar precedent was found in 
Deuteronomy xxix; “Ye stand this day all of you 
before the Lord your God . . . that thou should- 
est enter into covenant with the Lord thy God . . . 
that he may establish thee to-day for a people unto 
himself and that he may be unto thee a God.” It 
seems to have been the prevailing idea that a con- 

Churches Cleared (1648), Also Richard Mather, Church Govern- 
ment and Church Covenant Discussed (1643); A/odel of Church 
and Civil Power (quoted by Osgood, op. citl)\ John Davenport, 
A Discourse about Civil Government (1663). A later exposition 
is that of John Wise, A Vindication of the Government of New 
England Churches (1772). 

^ Mather’s explanation of majority rule is suggestive. It seems 
that a vote was first taken and an effort made to secure unanimity. 
But if the minority still continue obstinate, they are admonished, 
and so standing under censure, their vote is nullified.” Church 
Government and Church Covenant Discussed^ p. 61. 

It was explicitly denied that the form of church government was 
purely democratic. Mather said, “our answer is neither thus nor 
so, neither all to the People excluding the Presbytery, nor all to the 
Presbytery excluding the People. For this were to make the gov- 
ernment of the Church either meerly democratical, or meerly 
aristocratical, neither of which we believe it ought to be.’* 
Ibid, 57. 


tract was the necessary basis for both the church 
and the state.^ These two classes of covenants were 
known respectively as the “ church covenant ” and 
the “ plantation covenant ” ; and there was an inti- 
mate relation between the democratic method of 
forming a church and the democratic method of 
forming a state. 

Let us now consider briefly the Puritan ideas 
of liberty and equality from the political side. 
First, then, what was the Puritan conception of 
liberty ? The common idea that the Puritans 
were enthusiasts for political freedom can hardly 
be sustained. What they were chiefly concerned 
about was moral rather than political liberty. 
This was shown by Winthrop when he divided 
liberty into two classes: natural liberty and civil 
or federal liberty. The first kind, natural lib- 
erty, is absolute and unlimited ; it cannot be sub- 
jected to any restraint whatever from the side of 
authority. Civil or federal liberty, on the other 
hand, is constituted by the covenant between God 
and man, and by the political covenant. This lib- 
erty is freedom to do that which is “ good, just, and 

^ This idea of ihe contract had been worked out by the contro- 
versialists of the sixteenth century. Seethe Vindicia contra Tyran^ 
noSf 1579, by an unknown author. This work contains a curious 
blending of arguments derived from the Bible, Roman law, and 
feudal custom. The rights, obligations, and other incidents of the 
contractual relation are taken from the Roman law. The contract 
theory was clearly stated by Richard Hooker in his famous work 
on The Laws of Ecclesiastical Polity , {circa') 1594. 



honest.” ^ “ It is,” says Winthrop, “ the same kind 
of liberty wherewith Christ hath made us free,’ 
that is to say, freedom from the bondage of sin, 
and the restraints it involves. Liberty was not 
conceived as absolute and unqualified lack of re- 
straint, but as freedom of motion in that particular 
direction in which one should go in accordance 
with the covenant made with God. The Puritans 
brought with them the undoubted liberties of Eng- 
lishmen, and these they were careful to preserve. 
The political liberty, however, about which they 
were most anxious was the independence of their 
corporation or society. This they were always 
ready to defend against any other authority, espe- 
cially the rule or attempted rule of the home gov- 
ernment in England. But they were not so eager 
in behalf of the individual within the corporation. 
The corporate conscience and the corporate conduct 
must be free and untrammelled, but not necessarily 
the conduct and conscience of the individual. The 
Puritans did not preach or practice religious toler- 
ation, nor did they become enthusiastic about the 
inherent rights of man. They jealously guarded 
their traditional English liberties, they were ear- 
nestly desirous of moral and spiritual freedom, but 
their great end and aim politically was to secure a 
kind of civil government under which their reli- 
gious system could best be maintained. 

Nor were the Puritans given to assertions about 

* History of New Ettgland, II, 280-81. 


the innate equality of all men. Particularly in 
Massachusetts Bay, there were manifest in the 
early period decidedly aristocratic tendencies. The 
equality upon which the Puritans laid greatest 
stress, and which was to them most significant, was 
the equality of all men before God. Before Him, 
all men were regarded as sinners, hopelessly lost, 
so far as their own efforts could avail, and no one 
more worthy than another. In the doctrine of 
the Fall there is no room for rank or preeminence, 
but all are reduced to one common level. Thus 
it appears that the Puritans were believers in what 
is sometimes termed “ spiritual equality,” as distin- 
guished from other types; and even in this con- 
nection, as has been suggested, they held to 
“democracy in the Fall, but aristocracy in the 
Redemption,” for only the elect were regarded as 

Nor did they grant religious equality to all, for, 
as already indicated, they were intolerant of other 
religions than their own. The idea of full and 
complete freedom to choose whatever religion the 
individual might prefer, they were not prepared 
to accept, as the controversy between Williams and 
Cotton indicates. They did not entertain doctri- 
naire ideas about equality of any kind. They granted 
equality in civil rights, but did not include equality 
of political rights even among the adult males. 
This was true not only of the earlier period of the 
Puritan age, but of the later as well ; for the reli- 



gious requirements at first exacted were succeeded 
in the latter part of the seventeenth century by 
property qualifications for office-holding and for 
suffrage. The conclusion must be, then, that for 
political equality as such there was no great enthu- 
siasm among the Puritans. 

From this discussion it is evident that Puritanism 
in New England, and particularly in Massachusetts 
Bay, may fairly be characterized as theocratic. 
The dominant class was the clergy ; church-mem- 
bership was a prerequisite to full citizenship ; the 
civil power was invoked to insure to the church 
financial support, to enforce church discipline, to 
suppress and root out heresy. 

From a consideration of these tendencies of 
Puritanism it might perhaps be assumed that there 
was no democratic element in the system worth 
considering. It would, however, be just as far 
from the truth to conclude that there was no demo- 
cratic element in Puritanism, as to assume that its 
adherents came to the New World for the express 
purpose of establishing political and religious lib- 
erty for all men. Neither claim is borne out by 
a consideration of the Puritan theory and practice. 
Of greatest significance from the standpoint of 
democratic political theory is the Puritan idea of 
the contract. Primarily applied to ecclesiastical 
relations, to the formation of a congregation through 
the instrumentality of a church covenant, the same 


theory of the contract was carried over into politi- 
cal relations. The church covenant and the plan- 
tation covenant went hand in hand. This theory 
of contract necessarily emphasized the importance 
of the individual as the unit in both the ecclesiasti- 
cal and the political society, for it was voluntary 
consent and not divine right or long-established 
custom that was the basis of both church and state. 
This individualistic idea contained a germ of 
democracy which could not fail to develop under 
favorable conditions. In New England the early 
tendencies toward aristocracy or theocracy soon 
began to disappear, and the process of democratiz- 
ing social and political institutions began a course 
which is not yet completed. 

This result cannot all be attributed to Puritanism 
as such, however. The Puritans inherited from 
English ancestors and brought with them to the 
New World the political capacity characteristic of a 
highly developed political people. There was also 
a highly favorable environment, inviting if not com- 
pelling the growth of a democratic society and state. 
In estimating the democratic value of Puritanism 
these facts cannot be ignored. 

Next in importance and interest to the politi- 
cal ideas of the Puritans were those of the 
Friends in Pennsylvania. Here was worked out a 
system differing from that of the Puritans in re- 
spect to religious tenets and upon many political 



principles.^ In the religious teachings of the 
Friends, the sternness and severity of the Puritan 
theology was in many ways modified. In place of 
the doctrine of election, it was taught that the 
grace of God is universal in its application, and 
that there is an immediate revelation of the spirit 
of God to each individual soul in the form of an 
“inner light.” * In this respect the doctrine of the 
Friends was the antithesis of Puritanism. In other 
ways, however, the Friends were more Puritan than 
the Puritans themselves. They not only denounced 
ceremonialism as fiercely as did the Puritans, but 
further abandoned all sacraments, denied the ne- 
cessity for any special priesthood, denounced church 
tithes, and refused to take an oath or have any- 
thing to do with war. They emphasized plainness 
of dress, and directness of speech, and refused 
to uncover the head or bow to any man. But 
at the same time the Quakers possessed practi- 
cal characteristics that enabled them to achieve 
great worldly success. Of this the establishment 
of the colony of Pennsylvania was a signal proof. 

The government of Pennsylvania was on the 
whole about as democratic as that of the Puritan 
colonies. The emphasis on the contract was lack- 

^ C. and R. M. Thomas, A History of the Society of Friends 
in America ; Isaac Sharpless, A Quaker Experiment in Govern' 
ment, 1902. 

2 See William Penn, The Rise and Progress of the People called 
Quakers (1695); Robert Barclay, Theologi<z verte Christiana 
Apologia (1676). 


ing, but the theocratic element found in New Eng- 
land was also wanting. Religious toleration was 
granted to all deists, and there was no religious 
qualification for office except the belief in Chris- 
tianity.^ The ecclesiastical organization of the 
Friends was more democratic than that of the 
Puritans. There was no special body of ministers 
exercising authority over the people, women were 
granted equal rights with men, and the meetings 
whether for business or worship were conducted 
with the greatest informality, not even a presiding 
officer being regarded as necessary. 

An interesting fragment of Quaker theory is 
contained in the Frame of Government drawn up 
by Penn for the colony.^ In this document atten- 
tion is called to the great ends of government, which 
are said to be two, namely, to terrify evil-doers 
and to cherish those that do well. Particular era- 
phasis is laid 011 this double character of govern- 
mental activity. “ They weakly err,” it is said, “ that 
think there is no other use of government than 
correction, which is the coarsest part of it.” Of 
the forms of government three are suggested as be- 
ing most commonly discussed, but the conclusion 
is drawn that, “any government is free to the 
people under it . . . where the laws rule and the 

' After 1705, Roman Catholics were disqualified from holding 

“ Poore’s Constitutions, Vol. II, p. 1518. Compare with this The 
Fundamental Constitutions of Carolina, 1669, Ibid. II, 1397. 


people are a party to those laws.” Any govern- 
ment will work in the proper hands; for like clock i 
they go from the motion communicated to them, 
and in general depend on men rather than men on 
governments. Good men will always have good 
laws, whereas good laws may lack good men for 
their enforcement. The great end of the Frame 
of Government was declared to be “to support 
power in reverence with the people and to secure 
the people from the abuse of power.” 

The opposition of the Quakers to taking the 
oath and to participation in war involved them 
at times in difficult situations. It was charged 
by their enemies that their imwillingness to take 
an oath frequently resulted in failure to convict 
criminals, since in some communities no sworn 
jury could be secured. This seems, however, to 
have occasioned no serious difficulty, and the 
matter was finally settled by granting the Quakers 
the privilege of affirming instead of taking the 

The refusal of the Friends to take up arms was 
a matter of greater importance. During the inter- 
colonial wars, frequent requisitions were made upon 
them for a quota of troops. All such requests were 
refused, however, even when the colony was itself 
threatened with invasion by the enemy. They 
steadfastly declined to send any soldiers, or to grant 
any money for the conduct of the military opera- 

i Cf. Shaipless, op. cit.. Chap, V. 


tions. It was urged that if they could maintain a 
local police force and take human life in punish- 
ment for crime, they might properly take up arms, 
at least in self-defence. But the Quakers main , 
tained that a distinction must be drawn here. It 
was one thing, they said, to kill a soldier fighting in 
obedience to the commands of his sovereign, and 
another to kill a burglar who maliciously steals 
one’s goods in wilful violation of laws human and 
divine.^ Although they declined to send troops 
or vote money for the war, the Quakers did not 
put themselves in the position of absolutely refusing 
assistance to the government to which they owed 
allegiance. They were willing to contribute money 
to the home government, provided it was not used 
for military purposes, but for other governmental 
needs. For example, in 1709 the Assembly voted 
;£SOO, “as a present for the Queen.’’* In 1745 
they voted £,^000 for “bread, beef, pork, flour, 
wheat, and o^her grain.’’ “We have ever held it 
our duty,” they said, "to render tribute to Caesar,”* 
and therefore made the contribution. Their attitude 
occasioned earnest remonstrance and bitter criti- 
cism, but the Quakers remained unmoved, and uni- 
formly refused to appropriate men or money for 
the war, except in the indirect way just described. 
When no other alternative seemed possible, the 

* Minutes of the Provincial Council, IV, 371 ( 1739 )* 

* Ibid. II, 466. 

* Ibid. IV, 769. 



strict Quakers refused to try for seats in the As- 
sembly, and allowed that body to pass under the 
control of those who had no scruples against mili- 
tary operations. 

The rapid growth of the democratic spirit was 
not peculiar, however, to the Puritan and Quaker 
colonies. The conditions did not favor aristocracy, 
and the experiments made in that direction showed 
conclusively that its establishment was impracti- 
cable. The resources of the colonies would not 
support the necessary expenditure, nor was the 
temper of the people favorable in any greater 
degree. Something in the environment seemed to 
arouse the spirit of liberty and inspire the assertion ■ 
of individual and colonial rights in the most ag- 
gressive fashion. 

To this there are many witnesses whose testi- 
mony, biased though it was, shows unmistakably 
the nature of the new movement. Take, for ex- 
ample, the indignant references of Governor Spots- 
wood of Virginia to the election of “ representatives, 
persons of narrow fortunes and mean understand- 
ings,” and to the general opinion “ that he is the 
best patriot that most violently opposes all over- 
tures for raising money, let the occasion be what it 
will” and to the ‘‘ mobish candidates ” who “ alw'ays 
outbid the Gentlemen of sence and principles, for 
they stick not to vow to their electors that no con- 
sideration whatever shall engage them to raise 


money.” * He was particularly aggrieved because 
“ some of them have so little shame, as publicly 
to declare that if, in Assembly, anything should be 
proposed which they judged might be disagree- 
able to their constituents, they would oppose it, 
though they knew in their conscience, it would be 
for the good of the country.”* He denounced 
those who “ inflame the common people with 
notions of the ruin of their Libertys,” and charged 
that “ the liberty of doing wrong is none of ye 
least contended for here.” 

In Pennsylvania the same leaven was at work, 
even under the proprietorship of one so little 
disposed to arbitrary rule as was William Penn. 
In 1704 it was said that the people think “all 
that can be grasped to be their native right.” 
It was alleged that “some people’s brains are 
as soon intoxicated with power as the natives 
are with their beloved liquor, and as little to 
be trusted with it.”® Significant was the de- 
nunciation of one Guest, because “ a desire to 
be somebody, and an unjust method of craving 
and getting, seems to be the rule of his life.” 
Penn himself observed this “excess of vanity” 
on the part of the Americans. “Having got 

^ Spotswood Letters, in Virginia Historical CoUecHons, Ne* 
Series, VoL II, 134 (1715). 

» Ibid. 

* Penn-I.ogan Correspondence, In Memoirs of the Historieei 
Society of Pennsylvania, VoL IX, 299. 



out of the crowd in which they were lost here,” 
said he, “ upon every little eminencey there, (they) 
think nothing taller than themselves but the 
trees.” ^ 

What the governors or royal agents character- 
ized as stubbornness or stinginess, or quibbling 
over technicalities, or playing into the hands of 
upstarts and demagogues was, however, merely 
the expression, often indeed very crude, of the 
widespread democratic sentiment slowly gaining 
strength for the outburst in the Revolution. 

The storm centre of the democratic movement 
during the colonial period was the conflict be- 
tween the governors and the colonial legislatures or 
assemblies.* For this contest there was English 
precedent in the action of Parliament during the 
seventeenth century, and local reason in the colo- 
nial desire to escape administrative control by 
the home government Especially in Massachu- 
setts and New York the conflict was hard-fought, 
bitter, and long protracted, but the difficulty was 
by no means confined to these provinces. In the 
course of this battle, the assembly constantly 
gained on the governor, and steadily enlarged 

* Penn-Logan Correspondence, in Memoirs of the Historical 
Society of Pennsylvania ch. IX, 374. Cf. Maryland Archives, IX, 
177-178 (1758); CaxxoW, Historical Collections of South Carolina, 
II, 164. 

^ On this point see E. B. Green, The Provincial Governor, in the 
Harvard Historical Studies, VoL VII, 1898. In this connection 
see Jeremiah Dummer, Defence of the New England Charters, 1745. 


its power at the expense of his. The control of 
the finances, especially, gave them the opportunity 
to direct or influence the governor’s activity in 
many ways. Appropriations might be withheld 
to the embarrassment of the administration, or, 
if granted, might be made for specific and de- 
tailed purposes. The salary of the governor was 
determined by the assembly, and voted by that 
body at its pleasure, thus making it master 
of the governor’s financial situation, — an advan- 
tage more than once used to extort his assent to 
measures favored by the assembly. The appoint- 
ing power was also in many cases wrested from 
the governor and assumed by the representatives 
of the people. This was especially true as to the 
treasurer, who, as financial agent of the colony, 
was exposed to attack. The movement was not 
confined, however, to this officer, but the assembly 
appointed in some cases nearly all of the agents 
of administration, as in Pennsylvania and South 

In other ways the assembly asserted its 
power by assuming the direction of matters of 
public policy wffiich had generally been consid- 
ered a part of the prerogative of the executive. 
Indian affairs, for example, it sometimes man- 
aged by means of commissions appointed for that 
purpose ; intercolonial relations were also treated 
in the same fashion ; military affairs the legis- 
lature sometimes controlled by granting supplies. 


prescribing the operations to be undertaken, ap- 
pointing and removing officers, and even interfer- 
ing with the discipline of the troops. So far had 
these encroachments gone, that in 1757 it could 
be said of Massachusetts that “almost every act 
of executive and legislative power, whether it be 
political, judicial or military, is ordered and di- 
rected by the votes and resolves of the General 
Court, in most cases originating in the House of 
Representatives.” ^ More than anything else, this 
conflict served to bring out the spirit of democracy 
which was everywhere ready for action. It was 
a rallying point around which tendencies favorable 
to independence and popular government could 
gather, and as the intercolonial wars helped to 
teach the colonists military science, so these politi- 
cal battles afforded them indispensable training in 
the art of statecraft. 

On the whole, it may be said that during the 
colonial period the democratic spirit made remark- 
able progress. The colonies passed out of the 
stage in which they were religious experiments or 
industrial ventures of a rather hazardous character, 
and became prosperous communities eager for 
governmental autonomy. The individuals within 
these colonies were filled with a democratic en- 
thusiasm, and ready for an advance in the direc- 
tion of popular government. Until the decade 

> Board of Trade to Governor Pownall, cited by Green, op. cit. 


preceding the Revolution there was, however, little 
systematic discussion of the problems of political 
theory, with the exception of the indirect contribu- 
tion made by the Puritans. A steady democratizing 
process was going on under the influence of the 
new conditions, but there was little conscious re- 
flection accompanying this process. With the agi- 
tation preliminary to the Revolution came a group 
of leaders who sought a philosophical basis for 
their policies, and accordingly made frequent use 
of the formulae of political theory in their great 
struggle for independence. 



The most important and significant statement of 
American political theory is that made at the time 
when the United States asserted the right to an 
independent existence. The Declaration of In- 
dependence has been generally regarded as the 
corner-stone of the American political system, and 
the ideas of the “Fathers” of 1776 as a correct 
statement of the typical American political phi- 
losophy. These doctrines have undoubtedly ex- 
erted a profound influence in determining tbe 
course of American political thought. Even down 
to the present day, they are the standards by 
which must be measured all that is attempted in 
the world of politics. No study of American polit- 
ical ideas, or of American political institutions, 
would be complete without a careful analysis of 
the characteristic doctrines of 1776. 

It is, then, the purpose of this chapter to exam- 
ine carefully the nature and origin of the political 
ideas prevalent during the score of years covering 
the Revolutionary period ; that is, from about 1 763 
to about 1783. The exposition of the doctrines of 
3 « 


this period is rendered somewhat difficult by the 
fact that there was no systematic presentation of 
political theory made during this time. There was 
an unlimited amount of discussion from platform 
and pulpit, in pamphlets, resolutions, addresses, 
and newspapers, but a scientific statement of the 
popular beliefs was not made. It was natural that 
under the conditions no scientific shape could be 
given to any body of doctrine. Men wrote and 
spoke with eloquence and force, and they were 
men of intellectual keenness and power ; they 
spoke, however, not as philosophers, but as parti- 
sans and promoters of a concrete revolutionary 

Among the most important sources of informa- 
tion for this period, despite their unsystematic form, 
are the speeches and writings of such men as Otis, 
John and Samuel Adams, Dickinson, Paine, Jeffer- 
son, and Hamilton. Many indications of the Patriot 
theory are also found in the various declarations of 
colonial rights that were made on numerous occa- 
sions by legislatures or other less formal public 
assemblages. Finally, in the Revolutionary state 
constitutions are expressed, in legal form, the prin- 
ciples that were dominant among the people. 
From this material the ideas of this time may be 
reconstructed, and a fairly adequate and compre- 
hensive view of its political theory obtained. 

At the outset a few words may be said in re- 
gard to the historical situation under which was 



developed the theory to be considered. The result 
of the French and Indian wars removed a great 
obstacle to American independence, and from 
1763 on the drift of political conditions was 
steadily in the direction of separation from the 
mother country. The long experience of the 
colonies in the art of self-government, their re- 
moteness from England, and the difficulties of 
successful administration from so distant a base, 
the clash of colonial interest with Britain’s nationalist 
policy, — all were conditions likely to find expression 
at a favorable opportunity, in terms of political 
independence. The crisis came when the home 
government in England endeavored to tighten the 
long-relaxed bonds of union and to establish over 
the colonies a more complete administrative con- 

The immediate occasion of the conflict was a 
question of colonial taxation. In 1764 came the 
Declaratory Resolves, indicating the intention of 
the ministry to levy a tax on America. This was 
followed in 1765 by the famous Stamp Act, which 
aroused the opposition that found best expression 
in the Stamp Act Congress. This act was re 

' The following works are especially useful in the study of thi 
period : Richard Frothingham, Rise of the Republic of the United 
States; George Bancroft, United States, Vols. Ill and IV ; W. E. 
H. Lecky, England in the Eighteenth Century; M. C. Tyler, Lit- 
erary History of the American Revolution; W. M. Sloane, The 
French War and the Revolution. 


pealed the next year, but at the same time the 
significant declaration was made that Parliament 
possessed the undoubted power to bind the colonies 
“in all cases whatsoever.” The excitement over 
this assertion of Parliamentary authority had not 
died away before the Townsend Act was passed 
(1767), imposing taxes on such commodities as glass 
and tea, and providing means for the enforcement 
of the same. Though this act also was repealed 
(1770), with the exception of the duty on tea, 
the resistance continued to be as bitter as before. 
In 1773 the colonists instituted what proved to 
be a powerful agency in the development of their 
organization, namely, the Committees of Corre- 
spondence between the colonies. In the meantime 
fuel was added to the flames of colonial discon- 
tent by the instructions sent to the royal govern- 
ors and by the Regulating Act for Massachusetts. 
The Boston Port Bill, passed in 1 774, aroused uni- 
versal indignation and sympathy, and led up to the 
first Continental Congress of 1774. In the follow- 
ing spring came the clash of arms at Lexington ; 
in May, 1775, the Continental Congress made 
its declaration on taking up arms against Great 
Britain ; and finally, all hope of reconciliation hav- 
ing been destroyed, the Declaration of Indepen- 
dence was issued. During this period of thirteen 
years there was incessant debate upon questions 
of colonial policy, of constitutional law, and of 
political theory. These were topics of absorbing 



interest among the colonists, and occupied the 
minds of the ablest thinkers of that day. In 1 776 
began the work of constitution-making in the various 
states, and opportunity was given for the develop- 
ment or application of constructive theory. This 
process was completed by 1784, and with this date 
the epoch of the Revolutionary theory may be said 
to have closed. 

The argument with which the colonists began 
their resistance was constitutional in nature, in- 
volving the legal relations between the home 
government and the colonies. To this doctrine 
brief notice must now be given, in order that 
the full significance of the Revolutionary politi- 
cal theory may appear. The contention of the 
Patriots was that the course of the British Parlia- 
ment, in taxing the American colonies, was not 
merely inexpedient and unjust, but actually con- 
trary to the principles of the British Constitution. 
Consequently they affirmed that the government, 
in attempting to enforce such legislation, was 
wholly outside of legal and constitutional right. 
The basis for this claim was not always clearly 
stated, and was sometimes shifted, but the main 
features of it may be noted here. 

It was asserted, on the one hand, that the colo- 
nists owed their allegiance, not to Parliament, but 
to the king. From him they had received their 
charters, and to him, and not to Parliament, they 
were accountable. Britain and the colonies, it was 


said, are distinct states, as were England and Scot- 
land before the union ; they are bound together 
only by their common allegiance to a common 
king. “ The fealty and allegiance of the Ameri- 
cans,” said John Adams, “is undoubtedly due to 
the person of the King George III, whom God 
long preserve and prosper.” ^ In accordance with 
the charters received from him and of other ex- 
press or implied contracts, the colonists owe obe- 
dience to the king, although not to Parliament. 
This body has no authority to tax, it was urged, 
except for the regulation of colonial trade, and 
this is not strictly a right, but exists “merely by 
the consent of the colonies, founded on the obvious 
necessity of a case which was never in contempla- 
tion of that law, nor provided for by it.”^ The 
various Acts of Trade were even compared to 
commercial treaties between the colonies and 
Great Britain. 

By some of the Patriots a distinction was drawn 
between acts of Parliament levying external taxes 

^ See John Adams, Works,VI, 146; Answer of the Massachusetts 
House of Representatives to the Speech of tlie Governor, 1773, 
in Niles, Principles and Acts of (tie Revolution in America^ 2S7— 294 j 
Stephen Hopkins, The Rights of the Colonies Examined (1764), re- 
printed in R. /. Records, VI, 416; Richard Bland, An Inquiry into 
the Rights of the British Colonies {xqfA)-, Jefferson, Nnwwjarj' Viera 
of the Rights of the Colonists (1774). See Adams's reply to the 
argument that the king owed his position to an act of Parliament, 
iVorhs, IV, 1 14. 

^ Adams, IV, 33. Cf. Hopkins, R. I. Records, VI, 4aa 



for the purpose of general regulation of the trade 
of the kingdom, and on the other hand acts levy- 
ing internal taxes on the colonies.^ The authority 
of Parliament to levy the former was conceded on 
the ground of necessity for the general interest, 
but it was denied that the imposition of an in- 
ternal tax was a constitutional exercise of power. 

. Another line of reasoning was that by the .terms 
of the charters the colonists were entitled to all the 
rights and privileges of native-born English citi- 
zens. They were to be as free in America as if 
they had remained in England. As Hopkins said, 

“ There would be found very few people in the' 
world, willing to leave their native country and 
go through the fatigue and hardship of planting 
in a new and uncultivated one fojr the sake of 
losing their freedom.” On this basis the asser- 
tion was made that the colonists possessed the* 
right of Englishmen to be taxed only in case they 
were represented. This, they held,, was the most 
fundamental of all the rights of Englishmen,- and 
one of which they could not be deprived by any 
act of Parliament. Inasmuch as the colonists were 
not represented in Parliament, it followed they were 
not liable to internal taxation by that body. 

It was also argued that, owing to the local condi- 
tions, American representation was impracticable 
or impossible, and consequently that such' taxes 

* Thjs idea was developed most clearly by Pitt in the House of 


must be levied through the colonial legislatures, — 
the only channel through which consent could 
legitimately be given. ^ Formal recognition of this 
doctrine was embodied in the resolutions of the 
Stamp Act Congress ih 1765, which declared that 
“it is inseparably essential to the freedom of a 
^people and the undoubted right of Englishmen, 
that no taxes be imposed on them without their con- 
sent, given personally or through their representa- 
tives.” Later this doctrine assumed a still bolder 
form in the Declaration of the Congress of 1 774, 
to the effect that the colonists “ are entitled to 
life, liberty and property, and they have never 
ceded to any sovereign power whatever a right to 
dispose of either without their consent” 

Such w^s the constitutional argument upon 
which resistance was at first based. This line of 
attack proved to be vulnerable, however, in at least 
two points. First, the contention that the colonies 
were dependent upon the crown alone and, inde- 
pendent of Parliament, so far as internal taxation 
was concerned, was not in harmony with the 
opinion of the ablest jurists of the time, notably 
Mansfield. Again, the doctrine that no English- 
man could be taxed when unrepresented in Parlia- 
ment ware not in accord with the system of that 
day, which left totally unrepresented such popu- 

' John Adams enumerated the objections to colonial representa- 
tion, Works, IV, 139. Cf. Samuel Adasyis, Natural Rtgiis of tii 
Colonists, Wells, I, 507 ; also Bland, op trr 


lous and important communities as Sheffield, Bir- 
mingham, and Leeds. From this point of view it 
appears that the colonists were advocating a new 
theory and practice of representation, and not de- 
fending an old and well-established one.^ They 
had in short an antiquated theory as to the position 
and power of Parliament, and a premature theory 
of Parliamentary representation. Doubtless the 
colonists were influenced by certain seventeenth 
century opinions that the courts had the power to 
declare void an act of Parliament contrary to the 
common law.^ But in the eighteenth century, the 
opinion of crown lawyers was undoubtedly to 
the effect that Parliament did have the power to 
bind the colonies “ in all cases whatsoever.” The 
earlier idea crept into the law books, however, and 
hence came to be used for political purposes, after 
it had ceased to have any real value as a legal 

Such was the nature of the constitutional argu- 
ment which gave legal color and character to the 
first resistance against the British government.® 
Concurrently with this reasoning appeared much 

* Mansfield’s argument in favor of Parliamentary supremacy is 
sketched by Bancroft, Vol. Ill, 190 ff. (last revision, 1891). 

^ See Bonham’s Case, 8 Rep. 118 a. 

• On this subject see an article by H. L. Osgood, “ England and 
the Colonies,” in the Political Science Quarterly, II, 440-69 ; also 
Sir Frederick Pollock on “ Sovereignty in English Law,” in the 
Harvard Laiu Review, Vol. VIII, 243 ff. 


that was based on more abstract doctrines. The 
fundamental principles of the political theory of 
the "Fathers” were similar to those of the English 
revolutionists in the seventeenth century. The 
leading propositions in this philosophy were these. 
Before the establishment of civil government, men 
exist in a “ state of nature,” are subject only to the 
“ law of nature,” and possess a number of so-called 
“natural rights.” How far these rights extend 
every man determines for himself, and each en- 
forces his own judgment. Government is created 
by means of a contract in which every one sur- 
renders enough of his natural rights to permit the 
establishment of an organized authority, — “a 
common umpire.” But in case the government 
becomes oppressive, the people may then exercise 
the reserved right of resistance and overthrow the 
established authority. 

The colonists believed, then, in a pre-govern- 
mental state of nature. In this condition no man 
is subject to another, but each protects and defends 
himself — is perfectly free and independent. In 
the state of nature, moreover, all men are equal, 
not in the physical or intellectual sense, but so far 
as concerns jurisdiction or authority. No man is 
born ruler or governor of others, but all are created 
free to rule themselves, and equal in the right to 
rule themselves. 

All men possess, it was further maintained, a 
group of what were called “natural rights.” No 


subject was more frequently a topic of discussion 
than the rights of the colonists. These were to a 
great extent regarded as legal or constitutional 
rights against Parliament or against the crown, and 
elaborate arguments were made from this point of 
view. The colonists were not content, however, to 
stop with this kind of reasoning, but carried the 
discussion beyond the boundary line of public law. 
They declared that there exists a body of natural 
rights antedating the existence of government and 
superior to it in authority. These natural rights, it 
was held, are the real basis of political rights, and 
hence the action of the Britis i government, even 
if strictly legal, was still regarded as contrary to 
the inherent rights of man. This idea was boldly 
and forcibly expressed by many of the Patriot 
leaders. Dickinson declared that “ our liberties do 
not come from charters; for these are only the 
declaration of preexisting rights. They do not 
depend on parchments or seals; but come from 
the King of Kings and Lord of all the earth.” 
John Adams said that rights do not come from 
princes or parliaments ; but are coaeval with these. 
They are founded “ in the frame of human nature, 
rooted in the constitution of the intellectual and 
moral world,” derived from “the Great Legislator 
of the universe.” Even more vividly the youth- 
ful Hamilton asserted that “the sacred rights of 
mankind are not to be rummaged for among 
old parchments or musty records. They are 


written as with a sunbeam in the whole volume of 
human nature, by the hand of the Divinity itself 
and can never be erased or obscured by mortal 

What constitutes these rights was best stated in 
the Declaration of Independence, where it was 
asserted that all men are “ endowed with certain 
inalienable rights ; among these are life, liberty, 
and the pursuit of happiness.” In the state con- 
stitutions the same idea appeared, clothed in differ- 
ent phraseology. For example New Hampshire 
stated that there are “certain natural, essential, 
and inherent rights, among which are the enjoying 
and defending life and liberty ; acquiring, possess- 
ing and protecting property ; and in a word, of seek- 
ing and obtaining happiness.” These are rights 
which belong to every man by virtue of his exist- 
ence. They are antecedent to the formation of 
political society, and the necessary basis of all just 
government. The colonists proposed, therefore, to 
base their claim on the rights of British subjects, 
but if these were not recognized, then they would 
go deeper down and rest their contention on the 
natural rights of man. 

The belief in the state of nature, and in the 
freedom, equality, and natural rights of man, was 
accompanied by the theory of contract as the 
necessary basis of all legitimate government. If 
men are born free and equal, then no government 
can claim allegiance and obedience from them, 




unless they agree to it. It appeared to the men 
of this time as indisputably true that a just and 
free political society could rest on no other basis 
than the consent of the individuals to be ruled. 
This seemed the only rational way to explain the 
existence of government with coercive power over 
individuals who might otherwise live as independent 
sovereigns. Hence some form of contract was re- 
garded as a necessary step in the establishment of 
all legitimate government. This idea was taken 
up the more readily by Americans, because of the 
prominence it had enjoyed when the early New 
England settlements were formed. Hence it is not 
surprising to find in the Declaration of Indepen- 
dence the statement that “ governments derive their 
just powers from the consent of the governed ” ; or 
in the Massachusetts Bill of Rights that, “ the body 
politic is formed by a voluntary association of in- 
dividuals ; it is a social compact by which the 
whole people covenants with each citizen and 
each citizen with the whole people, that all shall 
be governed by certain laws for the common 

The exact nature of this contract was little dis- 
cussed. Thomas Paine in his Common Sense gave 
a fanciful sketch of early patriarchs assembling 
to form a government. Another authority agreed 
with Locke that the contract dates back so far that 
we have no record of it. “What eye,” he said, 
“ could penetrate through gothic night and barba- 


rous fable to that remote period ? ” ^ In general, 
however, there was a wise indifference to the 
details of the original contract. The Patriots were 
content with the understanding that governments 
derive their just powers from the consent of the 
governed, as a working hypothesis. This was 
accepted as one of the axioms in political philoso- 
phy, which no one in his political senses would 

Closely connected with the theory of the social 
contract, was the proposition of the Americans, 
that “taxation without representation is tyranny,” 
and the more general idea into which this was 
often merged ; namely, that all legitimate legisla- 
tion must rest upon representation or consent. 
This was discussed from the point of view of Par- 
liamentary authority and the rights of Englishmen ; 
but this was not the only angle from which the ques- 
tion was approached. The right to be represented 
was regarded not only as the right of Englishmen, 
but as the right of all men existing under a free 
government ; ^ indeed it seemed to be considered 
as the most fundamental of all rights, the sine qua 
non of political liberty. The principle was looked 
upon as one of general application, and not peculiar 

' Boston Orations, in Niles's Principles and Acts of the Revolution 
in America, pp. 51-52. Cf. Samuel Adams, in Wells, I, 429; Hop- 
kins, in R. I. Records, VI, 416. Otis’s idea of the contract was 
somewhat different. 

“ Adams said that “ English liberties are but certain rights of 
nature reserved to the citizen by the English constitution." IV, 124. 



to English constitutional law. John Adams main- 
tained that “ the very definition of a freeman is one 
who is bound by no law to which he has not con- 
sented.”^ Dickinson repudiated in strong terms 
the right to levy taxes, where the taxpayers are 
not represented. “Craft and cruelty,” he said, 
“ are striving to brand us with marks infamously 
denoting us to be their property as absolutely as 
their cattle.” ^ In accordance with this line of 
argument was Hamilton’s assertion that “civil 
liberty cannot possibly have any existence, where 
the society for whom laws are made have no share 
in making them.” 

The principle of consent to taxation and law- 
making in general was the strategic point, which 
the Patriots defended with all the resources of con- 
stitutional law and political theory at their com- 
mand. If natural rights and the social contract 
have any vital force at all, they reasoned, they 
must be capable of use in the defence of a man’s 
own property. If all that one has can be taken 
away by laws passed by a distant legislature in 
which one has no voice, then there is an end of 
natural right and the subversion of the social con- 
tract. This question of taxation appeared to the 
Patriots as the central point in the whole contro- 
versy, theoretically as well as practically. It 
mattered not what the amount of the tax was, nor 

1 Works, IV, 28. 

^ Ibid., XIV, 493. Cf. S. Adami, in Wells, I, 1548. 


how easily it might be paid; the principle was 
essentially the same. Hopkins declared^ that 
“ one who is bound to obey the will of another is 
as really a slave, though he have a good master, 
as if he had a bad one.” The men of the Revo- 
lution saw only the two alternatives : freedom or 
slavery; taxation and representation, or taxation 
without representation.^ They recognized no mid- 
dle ground either in constitutional law or in 
political theory ; they must be either wholly slave 
or wholly free, and the test of this was whether 
they were or were not afforded an opportunity 
to consent to taxes levied upon them. This was 
the theoretical point upon which the Revolution 

Related to the theory of natural rights and the 
“consent of the governed,” was the doctrine of 
popular sovereignty. That the people are the basis 
of all legitimate political authority was a proposi- 

* R. I. Records, VI, 423. Cf. Dickinson, XIV, 356 H. 

® Dickinson evolved an elaborate syllogism to prove that taxation 
without representation is tyranny, 

(1) God gave no one a right to make others miserable ; hence 
the right to be happy, 

(2) There can be no happiness without freedom; hence the 
right to freedom. 

(3) There can be no freedom without security of property; 
hence the right to such security. 

(4) Property is not secure if it can be taken without one^s con- 
sent ; hence the right to be taxed only when consenting, personally 
or through representatives. Memoirs of the Historical Society of 
Pennsylvania, Vol. XIV, 263. 


tion which was little disputed at this time. Since 
all men are born with the same natural rights, 
and inasmuch as all legitimate government must 
be based upon the consent of these individuals, 
it is evident that the great mass of the people 
are the foundation of the state. No sovereignty 
can come into existence or continue to exist, unless 
the people consent to and authorize it. The in- 
herent and inalienable sovereignty of the people 
was therefore assumed as a political principle of 
incontestable validity, — a premise which could not 
be assailed. Although frequent reference was 
made to this doctrine, there was little attempt at 
scientific discussion of the idea : it seemed, indeed, 
to be so generally recognized that elaborate argu- 
ment upon the question was superfluous. 

In the Declaration of Independence the doctrine 
was stated in the familiar form, “ governments de- 
rive their just powers from the consent of the gov- 
erned.” A more explicit statement was that con- 
tained in the Massachusetts Proclamation (1776),^ 
to the effect that the sovereign power “resides, 
always, in the body of the people ; and it never was, 
or can be, delegated to one man or a few, the great 
Creator having never given to men a right to vest 
others with authority over them, unlimited either 
in duration or degree.” Similar declarations found 
their way into the state constitutions. Thus North 
Carolina said that “ all political power is vested in 

* Force’s American Archives, Fourth Series, Vol. IV, p. 834. 


and derived from the people only”; New Hamp 
shire, that “all government of right originates from 
the people”; and the same sentiment was expressed 
elsewhere with slight variation in the phraseology. 
The constructive applications of this doctrine will 
be considered later. The destructive application 
of the doctrine took the form of the right of resist- 
ance, — naturally one of the most conspicuous of 
the doctrines of 1776. The Revolutionary move- 
ment rested upon a theoretical basis which served 
as a justification for the necessarily illegal conduct 
of the Patriots. In the preceding century two 
revolutions had occurred in England, and the 
theory of revolution had received classic formu- 
lation in the treatise of John Locke. The Ameri- 
cans were thus supplied with ample precedent from 
England in both historical events and philosophic 

Even before the conflict with England had be- 
gun, a decidedly independent spirit had been mani- 
fested in many of the colonies, and there were not 
lacking corresponding expressions of opinion. A 
bold statement of the right of resistance was made 
by Rev. Jonathan Mayhew on the anniversary of 
the execution of King Charles (1749). Mayhew 
referred to the experience of England and to the 
theory of Locke. He denounced unjust and tyran- 
nical magistrates in the most unsparing terms, de- 
claring that when they cease to perform their 
functions properly, they “ cease to be the ordinance 


and ministers of God, and no more deserve that 
glorious character than common pirates and high- 
way-men.” ^ Mayhew admitted that this principle 
might be perverted to bad ends, but maintained 
that this is true of all principles, including that of 
passive obedience. 

When the opposition to the English policy 
became widespread, and it seemed that open re- 
sistance must be made, arguments in favor of the 
right of revolution appeared upon every hand. A 
general belief in such a right was vital to the suc- 
cess of the Revolutionary movement, for nothing 
could be done if it was believed that government 
was something too sacred to be touched. History 
and philosophy were therefore drawn upon, to 
support the justice of resistance to government in 
extreme cases. All of the Patriot leaders defended 
the right of revolution with earnestness and vigor. 
Samuel Adams turned the argument against rulers, 
by asserting that kings and magistrates may also 
be guilty of treason and rebellion, and on the whole 
have been guilty more often than their subjects.* 
Dickinson took strong ground against the doctrine 
of passive obedience, urging that Parliament might 
sometimes do wrong, and in such cases resistance 
was advisable. Although praising the king and the 
royal line, he showed that even a father may do 

' Sermon at the West Meeting House in Boston, 1749-1750, con- 
tained in The Pulpit of the American Revolution, by J. W. Thornton. 

» Wells, I, 433 (1771). 


injury to his child : — “If my father, deceived and 
urged on by bad or weak men, said he, should offer 
me a draught of poison and tell me it would be of 
service to me, should I be undutiful, if, knowing 
what it is, I refuse to drink it ? ” Samuel Langdon, 
President of Harvard, declared before the Congress 
of Massachusetts (1775) that if magistrates forget 
their duty, “ reason and justice require that they 
should be discarded and others appointed in their 
room, without any regard to formal resignations 
of their forfeited power.” ^ Seldom was there dis- 
pute as to the right of revolution ; the greatest dif- 
ference was in the form of statement, or, on the 
part of others, in regard to the expediency of re- 
sort to it at that particular time. 

As might be expected, the Revolutionary idea 
found at times rather radical expression. An ex- 
ample of this type is the following statement made 
in one of the annual Boston orations. The speaker 
here defined civil liberty as “ a power existing in 
the people at large, at any time, for any cause, or 
for no cause but their sovereign pleasure, to alter 
or annihilate both the mode and essence of any 
former government and adopt a new one in its 
stead.” Benjamin Church declared that "where 
a degrading servitude is the detestable alternative, 
who can shudder at the reluctant poignard of a 
Brutus, the crimsoned axe of a Cromwell, or the 

' Cf. Hamilton, Works, edited by J. C. HamUtoa. tl, S»S* 

* Thoroton, op. cit., 250. 


reeking dagger of a Ravillac ? ” ^ The more 
moderate form of the Declaration of Independence 
is familiar to all : “ Whenever any form of govern- 
ment becomes destructive of these ends, it is the 
right of the people to alter or to abolish it, and to 
institute new government, laying its foundations on 
such principles and organizing its powers in such 
form, as shall seem most likely to effect their safety 
and happiness.” 

Frequently this philosophy found a channel of 
expression in the constitutions of the states. New 
Hampshire asserted that the doctrine of non-re- 
sistance is “ slavish, absurd, and destructive of the 
good and happiness of mankind.” Pennsylvania 
said that “the community hath an indubitable, in- 
alienable and indefeasible right to alter, reform or 
abolish government in such manner as shall by 
that community be judged most conducive to the 
common weal.” Delaware stated that “ persons 
entrusted with the Legislative and Executive power 
are the trustees and servants of the publick, and as 
such are accountable for their conduct ; wherefore, 
whenever the ends of Government are perverted 
and publick liberty manifestly endangered by the 
Legislative singly or a treacherous combination of 
both, the people may and of right ought to estab- 
lish a new or reform the old Government.” 

The theory of the state of nature, natural rights, 
and the contract were all steps leading up to the 
' Niles, op. cit; lo. 


right of revolution. If all these premises were 
accepted, as they generally were, the conclusion 
was easy, One might doubt the expediency or 
advantage of revolution ; but that it was logically 
justifiable in theory was hardly questioned. The 
right of resistance was one of the “fundamentals” 
over which there was but little dispute. The colo- 
nists firmly believed that their natural rights had 
been violated, and that they were wholly justified 
in the best self-defence possible. These rights 
were not to be infringed by the government, but 
to be protected ; if, on the contrary, these inherent 
and inalienable rights were attacked and abu.sed 
by government, then there was undoubted justifi- 
cation for armed defence of them. Such defence 
was not only a right, but even a duty for all free 
men or those who loved freedom. * 

This argument was of course closely related to 
the constitutional plea made in behalf of the I^atri- 
ots. There was thus a twofold justification for their 
resistance; first, that the action of Parliament in 
regard to the colonies was unconstitutional; and 
second, that even if conslituiioniil, thi.s action waa 
in violation of the natural rights of the colonists. 
In the early period of the struggle the eonsUtu= 
tional defence was most conspicuous ; in the later 
period the plea of natural rights was more promi- 
nent. If their rights as Hiitish aubjcota eould not 
be maintained, they could at least defmtd thelf 
rights as men. The argument from the eeostittt- 



tion was not abandoned, but the doctrine of natural 
right was less open to attack and was consequently 
more effective. Hence the increasing complaints 
of the colonists that their inalienable rights as 
men were being attacked, and that they were in 
danger of being reduced to abject slavery. In 
some cases it was claimed, following the prece- 
dent set by the House of Commons in 1689, 
that the king had broken the contract with the 
people.^ In others it was asserted that the 
social contract had been broken, and the state 
of nature restored.^ To all, however, it was plain 
that their sacred rights were being assailed, and 
that they had a counter-right to resist to the last 

In an examination of the revolutionary theory, 
some attention must be given to the prevailing 

1 Judge Drayton’s charge to the grand jury (Charleston, S.C.)» 
in Niles, 75; James Wilson in the Philadelphia Convention of 1775. 

2 Thacher, in Boston Orations, Niles, 23. In the first Congress, 
the theory was advanced that after the disavowal of allegiance to 
Great Britain, in 1776, the people were reduced to a state of nature 
and formed an entirely new social compact. The seat of one Smith, 
of South Carolina, who was abroad at that time, 1776, was con- 
tested on the ground that he had not taken part in their compact 
and hence was not a citizen. Mr, Jackson said that many of the 
states were a considerable period without establishing constitutions 
of government, and during that period we were in a little better 
state than that of nature ; and then it was that every man made his 
election for an original compact, or tie, which by his own act, or 
that of his father for him, he became bound to submit to.” Annals 
of Congress, 1 , 407. See Madison’s argument to the contrary, 1 , 404. 


conception as to the purpose of government 
There is not to be discerned, however, any careful 
analysis of this idea, for the men of this day were 
concerned with the purpose of government only in 
so far as they could use it to show that England 
was perverting this purpose. So far as they rea- 
soned at all about the function of government in 
general, their theory was in line with the individu- 
alistic and democratic character of their other 

The chief end of government was considered to 
be the welfare of the people, by whom and for 
whom it is instituted and maintained. Massachu- 
setts said that “ the end of the institution, maim 
tenance, and administration of government, is to 
secure the existence of the body politic, to protect 
and furnish the individuals who compose it with 
the power of enjoying in safety and tranquillity 
their natural rights and the blessings of life.” 
Again, the function of the government as the 
guardian of the general interest is contrasted with 
the “ special privilege ” idea. Thus it was urged 
in the constitution of Vermont that “ the common 
benefit, protection, and security of the people, 
nation, or community, and not the particular emolu- 
ment or advantage of any single man, family, or 
set of men who are a part only of that community,” 
is the proper end of government. 

The “ good of the people,” if more closely ex- 
amined, was found to consist in the protection of 



person and property. The prevalent idea was 
forcibly expressed by John Hancock when he said : 
“ Security to the persons and properties of the 
governed is so obviously the design and end of 
civil government, that to attempt a logical proof of 
it, would be like burning tapers at noonday to assist 
the sun in enlightening the world.” ^ Samuel 
Adams asserted that “ the security of right and 
property is the great end of government. . . . 
Such measures as tend to render right and prop- 
erty precarious tend to destroy both property and 
government.” 2 That such were the great purposes 
for which government was instituted appeared 
self-evident, and extended defence of the proposi- 
tions was deemed unnecessary and superfluous. 
Government must on the one hand protect the in- 
dividual from the danger of foreign attack, and on 
the other maintain the security of his property and 
the safety of his person. 

On the whole, there was a much more definite 
idea as to what the government should not do than 
as to what it should do. This is evident from the 
denunciation of the arbitrary conduct of English 
officials on certain occasions, and from the limita- 
tions placed upon the power of the state govem- 

1 Niles, 13. \ 

* Wells, I, 154. In the theory of Paine, a distinction was made 
between society and government. Society is regarded as a blessing, 
government as an evil; society is a “patron”; government a 
“ punisher.” Works, I, 69. 


ments in the state constitutions. Interference with 
freedom of person, security of property, free 
speech, freedom of religion, equality before the 
law, — these were things which were expressly for- 
bidden to the government. It was the negative 
side of government with which the Patriots were 
most concerned. They did not reason about the 
purpose of government further than to assert that 
whatever the state does, a large measure of civil 
liberty should be left to the individual. 

It is not to be presumed, however, that there 
was entire unanimity of opinion among the peo- 
ple upon these questions of political science. 
Loyalist feeling was strong among the colonists 
and with many was predominant. The num- 
ber of Tories is of course difficult to esti- 
mate, but it must have been large. In some 
localities the Tory element was in the majority 
and in others constituted a strong minority. 
Many of the Loyalists were opposed to the Revo- 
lution on grounds of expediency, others from 
personal reasons, but still others on political 
principle. A striking type of this latter class was 
Jonathan Boucher,^ a clergyman in Virginia and 
Maryland from 1759 to 1775, and finally driven 
out for his too decided expression of Loyalist sen- 
timent. His ideas are contained in a collection of 

* Born in England, 1738 ; removed to America, 1759; rector in 
Virginia and Maryland to 1775 ; died in England, 1804. 


his addresses under the title, A View of the Cause 
and Consequences of the American Revolution 
( 1797 )- 

Boucher’s opposition to the colonial theory was 
clear-cut and distinct. There was no attempt to 
evade the issue or to conceal his true sentiments 
on the political questions of the day. He was 
squarely opposed to the doctrines of the Revolu- 
tionary leaders, and his Ijpldly enunciated ideas 
stand in striking contrast to those defended by the 

Boucher had little love for the people, and saw 
nothing to admire in the prevailing democratic 
tendencies. Never was there a time, he declared, 
when there was a greater lack of steady and fixed 
principles than now. The irreverence of the chil- 
dren, the infidelity to the marriage relation, the at- 
titude of the rich toward the poor, afforded him 
evidence of a sad decline in general virtue. 

The doctrine that government rests on the con- 
sent of the governed, he regarded as wholly un- 
founded. If there were such consent given, it 
could be withdrawn at the option of the one who 
had given it. Consent, therefore, is an utterly im- 
practicable basis for the existence and maintenance 
of any settled government. If the principle were 
logically carried out, no authority of any permanent 
character would be possible. The contract theory, 
as he saw it, involved assumptions which could 
not legitimately be made. “ The supposition,” 


said he, “that a large concourse of people, in a 
rude and imperfect state of society, or even a ma- 
jority of them, should thus rationally and unani- 
mously concur to subject themselves to various 
restrictions, many of them irksome and unpleasant 
and all of them contrary to their former habits, is 
to suppose them possessed of more wisdom and 
virtue than multitudes in any instance in real life 
have shown.” 

That men are in any sense equal he also denied. 
Individuals are not equal, as is often presumed, but 
differ from each other in everything that can be 
supposed to lead to supremacy and subjection — 
“ as one star differs from another star in glory.” 
The foundation principle of government is not any 
such alleged natural equality of men, but, on the 
contrary, the very fact that there are inequalities 
among them makes possible the superiorities and 
inferiorities implied in any governmental system. 

Boucher’s theory was that government is from 
God. “It would be unreasonable,” he said, “to 
suppose that God, having created men, should turn 
them loose in the world with no other guide than 
their own passions ; that like so many wild beasts, 
they might tear and worry one another in their 
mad contest for preeminence.” He therefore 
rejected emphatically any such theory of govern- 
mental genesis, and declared that the power of 
government was given by God to the first man. 
The first father, therefore, was the first king, and 



all kings and princes derive their power from God, 
the source and centre of all power. Though they 
govern, for the benefit of the people, they are not 
created by the people. Their tenure of office they 
owe to God, and they reign independently of the 
people.^ Nor did Boucher agree that government 
is an evil, as alleged by some of the democratic 
writers. Government, he declared, is no more an 
evil than is medicine. The evil is not in the gov- 
ernment, but in the conditions which are such as 
to render the coercive action of government neces- 
sary. To political authority, men owe some of the 
greatest blessings they enjoy. It has brought 
them out of the original state of sin, misery, and 
barbarity, and enabled them to reach the high 
position they now occupy. Lawful government is 
the greatest blessing that mankind enjoy, and is 
the very life and soul of society. 

All government, according to Boucher, is essen- 
tially absolute and irresistible. It is not within the 
competence of the supreme power to limit itself ; 
for such limitation must come, if at all, from a 
higher source, i.e., from a superior. The govern- 
ment which ceases to be absolute, ceases to be 
government by elimination of the very element 
upon which its governmental character depends. 
This theory Boucher would apply to government 
by the many as well as by one. He does not limit 

1 For the English origin of Boucher’s theory, see Sir Robert 
Fihner’s Patriarcha, the classic defence of divine rights in England. 


the doctrine to any particular form of rule, but 
maintains it as true of any and all government, 
as such. 

The obvious corollary of these fundamentals 
in Boucher’s theory is the denial of all right 
of resistance to authority. Government being 
based, not upon natural right, nor upon popular 
consent, but upon the will and the ordinance of 
God, every man is consequently bound to render 
to the government under which he lives an obedi- 
ence either active or passive, — active obedience in 
all cases where not forbidden by God and passive 
wherever forbidden by God’s command; for no 
governmental order has any force against the ex- 
press word of God. 

Resistance to government Boucher held in 
the deepest abhorrence. Lucifer, he declared, 
was the author and founder of rebellion. He con- 
demned in set terms “ the damnable doctrine and 
position that any government, lawfully established, 
may be denounced or resisted by any self-commis- 
sioned persons invested with no authority by law, 
on any pretence whatsoever.” Government was to 
him something sacred and inviolable, deserving the 
respect and obedience of all citizens. The charac- 
ter and the acts of rulers should not be defamed 
and decried, for such conduct is unbecoming toward 
the divinely sanctioned authorities. Every citizen 
owes and should pay strict obedience, except in the 
case already cited. Kings are not infallible ; rulers 



may on occasions do wrong, but even in sucn rare 
instances, obedience is better than revolt against 
the law and against the rulers. “ A non-resisting 
spirit,” he declared, “never made any man a bad 
subject.” For one to rebel against an insignificant, 
unimportant tax on tea, is entirely unjustifiable on 
legal grounds and on the theory of the church, as 
well as on considerations of general expediency. 

Boucher could not see that any substantial benefit 
could arise from opposition to the government’s 
policy. He did not even concede that the oppo- 
sition party in Parliament afforded any real ad- 
vantage to the state as a whole. While some 
good might result from this opposition in a Par- 
liamentary way, yet, on the whole, more evil than 
good was likely to issue from it. The policy of 
opposition is in general unwise, as it leads to a 
low opinion of government, and tends in that way 
to destroy the prestige and power of the rulers. 
Moreover, people are seldom competent to criticise 
the acts of those who are over them. Even if 
flaws are discovered in the administration’s policy, 
it is better not to make violent complaint against 
those in authority.^ 

Of any popular participation in government he 
was profoundly distrustful. Democracy was, in 
his eyes, almost the equivalent of anarchy. It 
signified to him a desire for equality of possessions, 
a destruction of all motives to industry, and an 
* Cf. Samuel Johnion, Taxation no Tyranny (1775). 


end to all security. His attitude toward the peo- 
ple is well summed up in his sermon on Absalom, 
in which he declared : “ Mankind have seldom 
been assembled in great numbers for any useful 
purpose. Whenever we see a vast multitude, we 
may well exclaim with Jacob, O my soul, come 
not thou into their secret; unto their assembly, 
mine honor, be not thou united.” ^ 

Further light on the ideas of ’76 is given by 
an examination of the attitude of the colonists 
toward monarchy and the hereditary principle. 
In the early days of resistance there was no show 
of contempt for monarchy or for the British con- 
stitution. On the contrary, there was frequent 
expression of admiration for this type of political 
organization. Otis accurately voiced this popu- 
lar feeling when he said that the British constitu- 
tion was the best in the world, its king the best, 
and his subjects the happiest. John Adams 
pointed out the strong features of the British con- 
stitution and praised its many excellencies. Even 
Samuel Adams was on record as having strongly 
indorsed the English system : “ In none that I 
have ever met with is the power of the governors 
and the rights of the governed more nicely ad- 

^ In the preface to his volume Boucher suggested that the people 
of Great Britain remove to the East, where " undisturbed by repub- 
lican projects, so abhorrent to the genius of Asia,” they might live 
at peace with all the world. 



justed, or the power which is necessary in the 
very nature of government to be intrusted in the 
hands of some, by wiser checks prevented from 
growing exorbitant.” ^ The colonists wished to 
show that they were not at all in opposition to the 
British constitution, but only to its abuse by un- 
scrupulous and designing men. Their position 
was, that if the constitution were only properly 
interpreted and applied, there would be no ground 
for complaint. 

But when once the war had actually begun, the 
latent democratic sentiment appeared, and it then 
became evident that the British model was no 
longer to be regarded as the most perfect instru- 
ment of government in the world. By far the 
most striking expression of this democratic idea 
was Thomas Paine’s remarkable pamphlet Common 
Sense, which appeared in 1776. ^ This was a 
bitter and violent criticism of the British constitu- 
tion, of monarchy, and everything connected there- 
with ; and it was indicative of a striking change 
of sentiment in America. 

In the institution of monarchy, Paine could 
discern nothing whatever that was worthy of ap- 
proval, much less of imitation. Every king was 

« Weill, I, »i. 

*See the diicusiion of "Paine’s Political Theories," Political 
Science Quarterly, September, 1899. Cf. also Paine’s The For- 
ester's letters (1776), and The American Crisis (1776-1783), 
References ate to Conway’s edition of Paine’s writings. 


to him a George III and a George III at his 
worst. The whole vocabulary of abuse he ex- 
hausted in the effort to render monarchy odious 
and ridiculous. “ Sceptred savage,” “ royal brute,” 
“ breathing automaton,” are his attempts at accu- 
rate characterization of kings. Monarchs, in his 
estimation, are really only useless and expensive 
figureheads, the sooner dispensed with the better. 
In an absolute monarchy a king may possibly 
have some function to perform, even though it be 
an odious one ; but in the so-called constitutional 
monarchy the king is neither judge nor general; 
he is only a superfluous figurehead. His duties 
consist in giving away places for ;^I8oo,ooo a year, 
and being worshipped in the bargain. Paine ridi- 
culed the idea of the divine right of kings, holding 
up, as an example of the absurdity of this, William 
the Conqueror. Kings are chosen in general, he 
thought, because of their “ruffianly preeminence,” 
rather than by divine approval. Paine’s opinion 
of monarchy may be summed up in the one brief 
statement : “ Of more worth is one honest man to 
society, and in the sight of God, than all the 
crowned ruffians that ever lived.” ^ 

For the principle of hereditary succession, Paine 
had an unconquerable antipathy. In Common 
Sense he discussed and refuted three alleged 
methods of its origin, — namely, lot, election, and 
usurpation. If the first ruler were chosen by lot, 
* I, 84. 



said Paine, then this establishes a precedent fot 
such a method of choice, and the next one should 
be chosen in the same way. The fact that the 
first was chosen by lot is also an argument that 
the second should also be so selected. If by 
election, then this does not destroy the right of 
the succeeding generation ; for, if the first genera- 
tion had the right to choose, then the second must 
have the same right. The only parallel to the 
doctrine that after the first election the element 
of choice disappears, is the theological tenet of 
original sin : “ In Adam all sinned, and in the 
first electors all men obeyed ; in the one all man- 
kind were subjected to Satan, and in the other to 
sovereignty; our innocence was lost in the first 
and our authority in the last.”^ Usurpation, as a 
basis for hereditary succession, he refused to con- 
sider seriously, declaring it beneath the dignity of 
a refutation. 

Specific arguments were also made against the 
system in question. Such an institution is unwise, 
it was urged, because of the training of the pro- 
spective ruler in idleness and luxury ; because of 
the danger involved in the accession of an infant 
monarch ; and again because of the likelihood of. 
Wars to determine who is the proper heir. Nor 
was Paine able to see any justification for the sys- 
tem in utility. He was blind to all elements of 
strength it might contain, and could find scarcely 
1 Works, I, 8l. 


anything good in hereditary descent; it seemed 
to him an absurd method of selecting officials. 
The plan is contrary to nature and reason ; and 
it is, in fact, hardly conceivable how apparently 
sensible people ever came to adopt it. We do 
not think of attempting to establish an hereditary 
wise man, or an hereditary mathematician, or an 
hereditary poet. Why, then, an hereditary ruler, 
who is no more certain of possessing the necessary 
governing qualities than the hereditary wise man 
of possessing the proper amount of knowledge.? 

Even the much lauded checks and balances found 
in the British constitution did not elicit any praise 
from Paine. He inquired why such a device as 
balances should be necessary at all. If the king 
is trustworthy, why need he be checked ? if not 
trustworthy, why should he be king at all ? In 
any event the heaviest weight will always be the 
governing power, and in the British constitution 
this is the crown. The other departments may 
check or retard its motion, but cannot prevent its 
ultimate action. The strongest power will finally 
prevail, and what it wants in speed is supplied by 
time. Paine was therefore unwilling to join in the 
general worship of the English check and balance 
system. In fact, he maintained that the security 
and happiness of the English are not due to the 
form of the constitution, but to the characteristics 
of the people. So far as the government alone 
is concerned, it might be as despotic as in Turkey 



The essential and fundamental fact is the habit 
and custom of the people, and this it is that makes 
England a free country. 

Paine’s reasoning, however, presented a style of 
argument new to the colonists. There was now 
displayed no love of, or even respect for the king, 
or for the institution of monarchy ; no praise was 
bestowed on the English constitution. It was no 
longer intimated that the old institution with some 
modification would prove perfectly acceptable, but 
there was a bold demand for separation from gov- 
ernment by the mother country and from the form 
of government in the mother country. The Com- 
mon Sense seemed to mark the turning-point in 
American policy. From that time on, the advo- 
cates of independence triumphed; the “Fathers” 
turned against George III, and from the institution 
of monarchy as well, and at about the same time. 

More light on the political ideas of the “ Fathers ” 
is given by a further study of the extension and 
application of the doctrines already considered. 
The fundamentals of the revolutionary theory 
were almost altogether reproductions of the Eng- 
lish political philosophy of the preceding century, 
but the founders of the Republic did not halt at 
the point reached by their fore-fathers. They 
advanced the line of democratic theory and prac- 
tice in accordance with the more democratic con- 
ditions. The English movement of the seventeenth 


century culminated in the establishment of a con- 
stitutional monarchy ; the American movement 
went far beyond this in a democratic direction. 
To these changes our attention will now be di- 

In the construction of state constitutions, the 
monarchic and many of the aristocratic elements 
found in the British constitution were omitted. 
The frame of government became more democratic 
in nature. Privileged aristocracy had never been 
able to obtain a foothold in the colonies, and 1776 
was no time to gain one. Monarchy was identified 
with George III and the English system of admin- 
istration, and consequently no place was made for 
such a governmental feature. 

Many expressions of dislike for special privilege 
and hereditary rank are found in the first constitu- 
tions adopted in the states, and no stronger evi- 
dence as to the nature of the prevailing sentiment 
could be given than is offered by these early 
declarations. Massachusetts, for example, asserted 
that government is instituted for the common good 
and happiness of the whole people ; — “ not for the 
profit, honor or private interest of any one man, fam- 
ily or class of men.” Virginia declared that “no 
man or set of men, are entitled to exclusive or sepa- 
rate emoluments or privileges from the community, 
but in consideration of public services; which, not 
being descendible, neither ought the offices of mag- 
istrate, legislator, or judge to be hereditary.” 


The democratic environment had rendered special 
privilege unwelcome, and the legislators were anx- 
ious to give the prevailing sentiment constitutional 
recognition. There still remained a controlling 
class of gentry, but they possessed no hereditary 
title, office, or privilege. There had never been 
anything more than a theory of nobility in Amer- 
ica; with the Revolution, even this was swept 
away and the overwhelming sentiment declared 
against the institution.^ 

In the formation of state governments, the 
doctrine of delegated powers was everywhere 
prevalent. Assuming that the people were, orig- 
inally, and continue to be the only source of 
political power, it follows that all governmental 
authority is only delegated by the people and is held 
in trust for them. Governmental authority has no 
inherent force in itself ; it is not the creator, but the 
creature ; it is not the master, nor even the partner 
of the people, but their agent or servant ; it acts in 
the name of and in behalf of some one else and 
not for itself. Not only is government the ser- 
vant of the people, but it is an untrustworthy and 
unreliable servant. It cannot be given a free hand 
in caring for the affairs of its master, on the con- 
trary, it must be limited in many ways ; it must be 
checked at every possible point ; it must be at all 
times under suspicion. Otherwise it will cease to 

* Ga., N.C, S.C., Penn., declared against the entailment of 



be servant and take the place of the master. Too 
much emphasis cannot well be laid upon the fear 
which the “Fathers” had of government. To 
them the great lesson of history was, that govern- 
ment always tends to become oppressive, and that 
it is the greatest foe of individual liberty. 

To the end that government may be properly 
held in check, the “Fathers” developed an elabo- 
rate system which it was thought would adequately 
safeguard the rights of the people. In the first 
place, government should not be granted much 
power; in the next place, such powers as were 
given should be balanced and played against each 
other; and finally even these powers should be 
held for short terms only. By these means it was 
thought that political authority might be kept close 
to the people from whom it emanates, and by whose 
grace it stands. 

More specifically, it was an opinion of Revo- 
lutionary times that government should not be 
too strongly organized, lest its strength be turned 
against the people. Hence a large military force 
was always under suspicion, A standing army 
was looked upon as a constant temptation to the 
ruler and a perpetual menace to the citizen. It was 
necessary for the government to have at its dis- 
posal a certain amount of military strength, but 
this should be kept within strict limits, and in sub- 
ordination to the civil power. Again, every kind 
of centralized government was steadily opposed. 


It was believed that liberty was safer in the care 
of tbe local communities, where it could be kept 
under the eye of the people, and any attempt at 
usurpation be instantly detected and checked. 
The idea was that the farther the government is 
removed from the community, the more likely it 
is to tyrannize over that community. The classic 
illustration of this would be, of course, the conduct 
of England toward the colonies. There was, con- 
sequently, great jealousy of centralized govern- 
ment within the states, especially in New England, 
and everywhere there was opposition to a strong 
government over the states. A perfect expression 
of this latter feeling was the organization of the 
central government effected under the Articles of 
Confederation. Following but the principle of 
limiting the government as much as possible, there 
were many restrictions on its action in the state 
constitutions. In long and eloquent bills of rights 
notice was served on government not to trespass 
on certain fields of individual activity. Govern- 
ment must not interfere with freedom of speech, 
freedom of religion, freedom of assembly and 
petition, or freedom of person and property, except 
through the recognized and prescribed forms of 

In these various ways, then, a strong effort was 
made to restrict the government to the minimum 
of strength ; by the subordination of military to civil 
power, by the decentralization of political author- 


ity, and by the enumeration of specific guaranties 
against invasion of personal liberty and property. 

In the same connection comes another theory 
widely entertained by the “ Fathers,’’ namely, that of 
the separation and balance of governmental powers. 
This doctrine had been formulated by Montesquieu 
in the Spirit of Laws (1748),! basing his reasoning, 
however, on observation of English conditions; 
both the theory, therefore, and the facts were well 
known among the Americans. They valued highly 
the division and balance of powers among king, 
lords, and commons, and saw in this piece of 
mechanism the strongest support of English lib- 
erty. Consequently they readily accepted and 
acted upon Montesquieu’s theory. They firmly 
believed that unless the three classes of govern- 
mental power — the legislative, the executive, and 
the judicial — were separated and a distinct organ 
of government provided for each class, there could 
be no certainty of political liberty. 

In the state constitutions the idea of the sepa- 
ration of powers found the clearest expression. 
Massachusetts asserted that “in the government 
of this commonwealth, the legislative department 
shall never exercise the executive and j udicial powers 
or either of them ; the executive shall never exer- 
cise the legislative and judicial powers or either of 
them ; the judicial shall never exercise the legisla- 
tive and executive powers or either of them — to 
I Book XI. 



the end that it may be a government of laws and 
not of men.” A less doctrinaire statement was 
that of New Hampshire, to the effect that there 
should be such a separation of powers “as the 
nature of free government will admit, or as is 
consistent with that chain of connection that binds 
the whole fabric of the constitution in an indissolu- 
ble bond of union and security.” 

Though the separation and balance of govern- 
mental powers, was accepted in theory there was 
in practice no such equilibrium established as the 
theory called for.^ On the contrary, there was an ex- 
altation of the function and position of the legisla- 
ture and a corresponding depressioq^of the others, 
particularly the executive. Everywhere there was 
manifested great jealousy of the state executive, 
and numerous restrictions were thrown around his 
tenure, term, and prerogatives. In many cases 
the governor was elected by the legislature,^ his 
term of office was limited to one year,® restrictions 
were placed upon his appointing power, and in 
only a few cases was the veto allowed.^ The 
judiciary was declared independent by some states, 
but was generally dependent in respect to appoint- 

^ On the Revolutionary State Constitutions see “The First State 
Constitutions,” by W. C. Morey, in Annals oj the American Academy 
of Political and Social Science, Vol. IV ; also, in Vol. IX, " Revolu- 
tionary State Constitutions,” by W. C. Webster. 

2 N.J., Del., Md., Va., N.C, S.C, Penn., Ga. 

• N.H., N.C., Va., Mass., N.J., Penn., Ga., Conn., R.I., Md. 

* Mass., S.C (1776), N.Y. (with Council of Revision). 


meJt and salary upon the governor and council, 
3r even directly upon the legislature.^ When it 
is further considered that in many states almost all 
of the important officers were appointed by the 
legislature ; that in two states there was a uni- 
cameral legislature ; ^ and that the constitution- 
amending power was often vested in the ordinary 
legislature,® — it becomes evident that the predomi- 
nant position was held by that body. The strong 
dislike of the English crown and of the royal 
governors had led to a reaction against executive 
authority in general that resulted in the practical 
supremacy of another of the three coordinate 
branches of government, namely, the legislature. 
There was naturally greater readiness to intrust 
the necessary governmental powers to this body, 
inasmuch as the legislators were regarded as the 
immediate representatives of the sovereign people. 
In the long and bitter struggles of colonial days, 
the Americans had learned to trust and rely upon 
the legislature, and to suspect and antagonize the 
executive. They, therefore, reduced to a mini- 
mum the powers of the executive and intrusted 
such authority as seemed necessary for the estab- 
lishment of government to the legislature. They 

1 Va., N.H. (’76), N.C., S.C., N.J., Del., R.I., Conn. 

^Penn., Ga., Vt. 

® In Ga., Mass., and Penn, provision was made for amendment 
by a convention ; in the other states where mention was made of 
amendment, the power was vested in the legislature. 



did what the English Parliament had done and 
was yet to do still more emphatically, — asserted the 
superiority of the legislature over the executive. 

In addition to the separation of powers, another 
method used for the purpose of holding in check 
the government was the grant of power for a 
short term only. To guarantee security, it was 
thought that power must be kept close to its true 
basis, the people. In this way the rise of arbi- 
trary rulers could be prevented and the officers 
intrusted with power be made responsible to the 
people. As John Adams once said, “ where annual 
elections end, there tyranny begins.” ^ This idea 
was conspicuous in the constitutions of the states, 
where frequency of election received both theo- 
retical and practical support. Maryland declared 
“ a long continuance in the first executive depart- 
ments of power or trust is dangerous to liberty; 
a rotation, therefore, in those departments is one 
of the best securities of permanent freedom.” Of 
like import was the statement of Massachusetts : 
" In order to prevent those who are vested with 
authority from becoming oppressors, the people 
have a right ... to cause their public officers to 
return to private life.” In general, officers were 
allowed short terms only. Governors were in 
many cases annually elected, legislatures for the 
same period, and other officers, with the exception of 
judges, followed the same rule. This requirement 
^ Cf. the Pennsylvania Constitution, Sec. 19. 


was made still more rigid by the provision in many 
instances that the office-holder should be ineligible 
to the same office for a certain period of years, as 
one in three, two in four, or some like ratio. Thus 
the officer was not only limited to a short term, but 
was forbidden continued reeleclion, and constitu- 
tionally forced to retire, even though his adminis- 
tration had been of the ablest kind. The evils arising 
from the existence of a permanent or hereditary 
office-holding class, it was determined to prevent 
even at the cost of administrative efficiency. 

In these different ways, then, the attempt was 
made to keep alive the principle of popular sover- 
eignty, and to prevent the development of a tyran- 
nical government. What was feared at that day was 
not the incapacity or inefficiency of those conduct- 
ing the administration, but the tendency of the rul- 
ing class to oppress in some way or other the class 
to be ruled. To the theorist of that time, every 
officer appeared to be a possible foe to the secu- 
rity of the individual and his property. The great 
guaranty of liberty was, therefore, to give the rulers 
as little power as possible and then to surround them 
with numerous restrictions, to balance power against 
power, to compel a frequent return to the people 
for renewal of the tenure of authority. This was 
the mechanism devised to carry out the democratic 
theory, and to prevent the recurrence of govern- 
mental tyranny. 

It is essential to notice, however, that while the 


revolutionary theory was democratic on its destruc- 
tive side, and to a certain extent on the constructive 
side, there were also present aristocratic tendencies 
of a pronounced character. Democracy had by no 
means reached the degree of development that was 
attained in the following century. 

The most marked of these aristocratic features 
in the government of the “Fathers” was the limi- 
tation upon the suffrage. In actual practice the 
basis of their democracy was not very broad, or, 
at least, was relatively narrow when compared with 
that of the present day. The principle was laid 
down in some of the state constitutions that those 
were entitled to the suffrage who showed “sufficient 
evidence of attachment to the community.” This 
evidence, however, generally consisted in the pos- 
session of a certain amount of property, preferably 
real estate. In discussing the subject of represen- 
tation, Franklin said that “as to those who have no 
landed property, . . . the allowing them to vote for 
legislators is an impropriety.” ^ Hamilton consid- 
ered that those who possessed no property could 
not properly be regarded as having a will of their 

In drawing up the state constitutions the prop- 
erty qualification was adopted, as a guide for de- 
termining who should be entitled to participate in 
the choice of officers. The accepted idea was that 

^ Works^ IV, 221, 1766. 

* Ibid^ II, 62 ff,. The Farmer Refitted. 


the political people were the land-holding class 
The states either required the possession of a free- 
hold, or accepted a property equivalent of some 
kind. All the states agreed in requiring some evi- 
dence that the voter had a financial interest in the 
community, — either a free-hold of a certain value, 
or other estate, or the payment of some public 
tax. The man who was not able to qualify in this 
way could not cast a vote under the laws of any of 
the states. He was not regarded as sufficiently 
attached to the community to justify participation 
in its political life. In this way the voting constit- 
uency was limited to a fraction of the adult male 
population, much less than half. 

The same tendency is evident in the require- 
ments for office-holding. Here also the property- 
holding class has the privileged position. It was 
provided in many states that the governor must be 
a freeholder, thus showing a preference not only 
for property in general, but for landed property 
in particular. In some instances the value of the 
freehold was fixed at a very considerable figure; 
in Massachusetts, for example, at £,\ qoo , in Mary- 
land at ;£ 5 ooo, and in South Carolina at 0,000. 
High property qualifications were also required for 
many other offices, although not for all.* Gen- 
erally speaking, therefore, participation in political 

1 An interesting discussion of legal qualifications for office in 
America is given by F. H. Milter in the Annual Report of the 
American Historical Association for iSgg, Vol. I. 



life was limited to the most prosperous element in 
the population, and the government of that day 
was a government of and by the propertied classes. 

In addition to these limitations upon the political 
people of 1 776, there were also important religious 
restrictions. Notwithstanding the rationalistic ten- 
dencies of such leaders as Benjamin Franklin, 
Thomas Jefferson, and Thomas Paine, religious 
qualifications held a conspicuous place in the state 
constitutions. The principle of toleration for all 
sects was generally recognized, but the requirement 
of some religious test for public officers was not 
condemned by public sentiment. In certain states 
it was necessary that the governor be a Protestant,* 
in others that he be a Christian.^ It was often 
specified that a member of the legislature must be 
a Protestant,® in some cases he must be a Christian.^ 

Freedom of worship was recognized in strong 
terms, with the qualification that the exercise of 
the right should not disturb the public peace. For 
example, in Maryland freedom of worship was 
granted, “ unless under color of religion any man 
shall disturb the good order, peace or safety of the 
state, or shall infringe the laws of morality, or injure 
others in their natural, civil, or religious rights.” 

1 N.H., N.J., N.C., S.C. (’78). « Md., Mass. 

• Ga., N.H., N.C, S.C., N.J. 

‘ Mass., Md. Pennsylvania requited belief in God, future re- 
wards and punishments, inspiration of Scriptures. In Delaware 
there was a similar requirement. 


This grant of general toleration was not con- 
strued, however, as prohibiting the financial assist- 
ance of the church by the state. In some cases 
the legislature was allowed to levy a tax for reli- 
gious purposes, allowing the taxpayer to designate 
the religion to which he wished his contribution to 
be given. ^ This did not establish any one religion 
in preference to another, but was a political recog- 
nition of all the accepted religions. On the whole, 
there were but two states in which no religious 
qualifications or tests of any kind were required 
for office, namely, New York and Rhode Island. 

On the other hand, however, there was inserted 
in the constitution of almost every state a clause 
forbidding the clergy to hold office under the state. 
This disqualification was sometimes absolute, ex- 
tending to all civil offices, or it was sometimes 
applicable only to a seat in the legislature. The 
limitation was imposed for the benefit of both 
church and state, that there might arise no diffi- 
culties for either from too intimate a union. 

It appears, then, that despite the assertion that 
all men are equal, the "Fathers” in framing their 
constitutions felt no reluctance about conditioning 
political rights upon certain financial and religious 
considerations. These restrictions operated to 
throw the control of political affairs into the hands 
of the freeholders who were at the same time 

' Religious establishments were constitutional in Conn.) Mats^ 
Md., N.H., S.C, Va. during the Revolutionary period. 



Christians and preferably Protestants. This was 
the contemporary interpretation of the Declaration 
of Independence. The field of political privilege 
appears narrower still, when it is considered that 
the negro element of the population was held in 
slavery and had no political recognition at all. 
Evidently the “ Fathers ” themselves did not regard 
property, religious, or racial limitations as incon- 
sistent with the rights of man or those principles 
of political philosophy to which such frequent 
reference was made. 

It is necessary to turn now to a brief considera- 
tion of the source of the theory of this time. The 
origin of the dominant ideas during the Revolution 
is not difficult to find. As the Patriots were guided 
by the historical precedents established by Eng- 
land in the seventeenth century, so they followed 
the political theory developed at that time by the 
revolutionary party. The rejection of two kings 
within half a century was sufficient warrant for 
the refusal to obey George III. The colonists 
were not striking out upon a new and wholly un- 
tried path, but were following in the way broken 
by their ancestors of a few generations before. 
If revolution were wrong, then the House of 
Hanover had no legitimate claim to rule, and re- 
sistance to its members could not constitute rebel- 
lion. The same kind of reasoning used in 
justification of the revolution that drove out the 
Stuarts, might fairly be applied to the successors 


of the Stuarts. The jure divino theory had been 
repudiated in Kngland, leaving only the argument 
from expediency, as the support of an existing 
constitution, and in accordance with this argument 
the colonists decided that independence from 
Britain was better than union with her. 

The advanced stage of development of English 
political speculation from the democratic point of 
view is often overlooked.^ The doctrines of nat- 
ural rights, the contract, popular sovereignty, the 
right of resistance, had been worked over and 
over by the popular leaders of the seventeenth cen- 
tury. The contract theory was advanced and de- 
fended by many able writers, conspicuous among 
whom were : Milton, in his Areopagitica (1644), 
T enure of Khigs and Magistrates ( 1649), first 
and second Defence of the English people (1650- 
1654); Sydney, Discourses concerning Government 
(1698); and above all John Locke in his Two 
Treatises of Government (1689), These men 
stated the revolutionary doctrines in the boldest 

The Patriots were familiar with this philosophy 
of their English predecessors and they followed it 
closely. They referred to these writers, quoted 
from them, and adopted the substance of their 
argument, and in some cases the form as well. 

' This theory is analyzed by G. P. Gooch, in English Danocratii 
Ideas in the Seventeenth Century, in Cambridge Historical Series 
Vol. X, 1898. 



Locke, in particular, was the authority to whom 
the Patriots paid greatest deference. He was 
the most famous of seventeenth century demo- 
;ratic theorists, and his ideas had their due weight 
with the colonists. Almost every writer seems to 
have been influenced by him, many quoted his 
words, and the argument of others shows the 
unmistakable imprint of his philosophy. The 
first great speech of Otis was wholly based upon 
Locke’s ideas ; Samuel Adams, on the “ Rights 
of the Colonists as Men and as British Subjects,” 
followed the same model. Many of the phrases 
of the Declaration of Independence may be found 
in Locke’s Treatise;'^ there is hardly any impor- 
tant writer of this time who does not openly 
refer to Locke, or tacitly follow the lead he had 
taken. The argument in regard to the limitations 
upon Parliament was taken from Locke’s reflec- 
tions on the “ supreme legislature ” and the nec- 
essary restrictions upon its authority.* No one 
stated more strongly than did he the basis for the 
doctrine that “ taxation without representation is 
tyranny.” No better epitome of the Revolution- 
ary theory could be found than in John Locke on 
civil government. The colonists claimed no origi- 

' See Secs. 220, 222, 225, 230. 

* See Sec. 1 35 ff. The four limitations upon the legislature, named 
by Locke were: i. It cannot be absolutely arbitrary. 2. It must 
rule by standing larvs. 3. “ Cannot take from any man part of 
his property without his own consent.” 4. Cannot transfer the 
power of making laws. 


aality for the fundamental doctrines they preached ; 
in fact they declared that these ideas were at least 
as old as the days of Greece and Rome. John 
Adams said : “ These are what are called Revolu- 
tion principles. They are the principles of Aris- 
totle and Plato ; of Livy and Cicero, and Sydney, 
Harrington and Locke; the principles of nature 
and eternal reason; the principles on which the 
whole government over us now stands.”^ The 
Patriots did not profess to have discovered a 
hitherto unknown system of political theory; on 
the contrary, they appealed to an old and long 
accepted theory, — a theory indeed upon which 
rested the legitimacy of the English political sys- 
tem of that day. 

The French radical influence upon the Revolution 
was comparatively small. Montesquieu’s Spirit of 
Laws (1748) was known to the colonists, and the 
doctrines therein contained were frequently quoted. 
But many of the features admired in Montesquieu 
were derived from his study of the English consti- 
tution and the English political system. This was 
eminently true of his celebrated doctrine of the 
tripartite division of governmental powers, which 
he had found or thought he found in the English 
constitution. Many of the other projects advocated 
by him were also derived from his study of English 
institutions. The greatest of the revolutionary 
philosophers of France, Rousseau, did not write 
1 Work, IV, 15. 



his classic work, The Social Contract, until 1762, 
whereas the revolutionary doctrines of Otis were 
uttered in 1761. The general philosophy of the 
colonists shows little likeness to that of Rousseau, 
and but infrequent reference to his theory is 
made. Indeed, the fundamental ideas of the 
French writer were very similar to those of 
Locke. ^ There is little evidence to show that the 
bent of the revolutionary theory in America was 
determined by the great apostle of the French 
Revolution ; but on the other hand very much to 
prove that the theory of Locke and the English 
school was predominant. 

On the whole, the theory of the Revolution was 
in direct line with English political precedent and 
philosophy. In their destructive or revolutionary 
doctrine the “Fathers” of 1776 simply followed 
their “ Fathers ” of the preceding century. But in 
their constructive theory, notably in their substitu- 
tion for monarchy and nobility of the many demo- 
cratic features embodied in their state constitutions, 
they were striking out on new lines of political ex- 
periment. Many of these ideas, perhaps all of 
them, had been already suggested in the seven- 
teenth century ; but they had been unable to win a 
definite place for themselves in the English system 

' Cf. D. G. Ritchie, “ Contribations to the History of the Social 
Contract Theory,” in Political Science Quarterly, VI, 664. In 
this connection see Georg Jellinek, Die Erklarung der Menschen- 
und Burgerrechte,X,e\fzig, 1895. 


of that day,^ and were left to be realized in prac- 
tice by the American democracy of the next cen- 

In conclusion, then, it appears that the funda- 
mental political ideas in vogue among the Patriots 
were not the product of American soil, and were 
not original with the men of the Revolutionary day, 
but were the inheritance of English political expe- 
rience and philosophy in the preceding century. 
The form in which they were expressed was strik- 
ing and dramatic, but the ideas themselves were 
not new ; on the contrary they were, from the view- 
Doint of political theory, doctrines long familiar. 
The teaching that all men are by nature equal is 
found in the Roman law,^ while the idea that 
governments derive their just powers from the con- 
sent of the governed, is a long accepted maxim. 
Professor Gierke, che distinguished German author- 
ity, says that “ from the end of the thirteenth 
century it was an axiom of political theory that 
the legal basis of all authority lay in the voluntary 
subjection through contract of the community 
ruled.” ® The doctrine of the right of resistance 
was stated with greatest emphasis by the political 
theorists of the revolutionary type in the sixteenth 

' Cf. “The Agreement of the People,” 1647, in Gardiner’s Con- 
stitutional Documents of the Puritan Revolution, p. 270. 

“ Digest, L, 17, 32. Quod ad jus naturale attinet, omnes homines 
sequales sunt; from Ulpian, who died circa 328 A.D. 

• Otto Gierke, Johantus Altkusius und die Entwicklung dtt 
Maturrechtlichen Staatstheorien, Breslau, 1880. 



and seventeenth centuries.^ To attribute the orig 
ination of these ideas to the men of 1776 is, there- 
fore, simply to ignore the historical development of 
political theory. But in respect to the practical 
application of these doctrines, what has just been 
said does not apply; for a set of principles like 
those involved in the construction of state consti- 
tutions had never before received such public rec- 
ognition. The destructive democratic theory of 
the day was old, but the constructive democratic 
theory as worked out in the state governments 
was the product of new conditions. 

By way of summary, it may be said that the 
leading doctrines of the Revolutionary period were 
those of what is known as the NaUirrecht school 
of political theory. They included the idea of an 
original state of nature, in which all men are born 
politically free and equal, the contractual origin 
of government, the sovereignty of the people, and 
the right of revolution against a government 
regarded as oppressive. The latter doctrine, in 
particular, was stated in the boldest and most 
uncompromising form, since this was the ultimate 
argument upon which the Revolution rested for its 

On the constructive side, an elective executive 
was substituted for hereditary monarchy, and the 
institution of hereditary aristocracy abolished. 

^ Cf. Rudolph Treumann, DU Menarchomachen, Leipzig, 1895. 


The greatest danger feared was an oppressive 
government, hence numerous restrictions were 
placed on the action of its organs. Many rights 
were expressly reserved to the people, the tripartite 
separation of governmental powers was accepted, 
officers were made responsible to the people 
directly or through the legislature at frequent 
intervals, and often constitutionally disqualified for 
a term of years. Distrust of centralized govern- 
ment was shown at every point, with the exception 
of the legislature, which escaped popular sus- 

It will be observed that the spirit of this reason- 
ing was decidedly individualistic. The starting- 
point was the independent and sovereign individual, 
endowed with a full set of natural rights. He 
consents to give up a part of these natural rights 
to form a government by means of a contract. On 
this basis, political society and the state are con- 
structed, and in this spirit political institutions are 
interpreted throughout. This was the general 
character of the revolutionary theories of the 
seventeenth and eighteenth centuries, and from 
this tendency America was no exception. 



After independence from Great Britain had been 
won and formally recognized, two broad tendencies 
appeared during the formative period of the Un- 
ion, — the reactionary and the radical. The theory 
of the first party is well expressed in the Constitu- 
tion itself, in the Federalist, and in the writings 
of John Adams and Alexander Hamilton. The 
theory of the radical element is best stated by 
Thomas Jefferson, the central figure in the practi- 
cal politics as well as in the political philosophy of 
the democratic school. 

What may be called the reactionary theory was 
the outgrowth of certain conditions which must 
now be briefly noticed. The eleven years that in- 
tervened between the Declaration of Independence 
and the Constitutional Convention witnessed rapid 
and extensive changes in the political conditions of 
America.^ The Declaration of Independence was 
followed by seven years of war, resulting in the 
recognition of the independence of the American 
states. The common danger which had bound 

1 On this period see such standard histories as Schouler, Hil- 
dreth, McMaster, Curtis. 




the colonies in a united whole was thus removed 
and the forces of disintegration and disunion began 
their fatal work. The Articles of Confederation, 
adopted in 1781, signally failed to express the 
sentiment of nationality evident at the outset of 
the war, and resulted in a federal government 
which was so hampered and crippled at every turn 
that its power and prestige soon disappeared. 

With a constitutional requirement of unanimity 
for amendment and of an overwhelming majority 
for the passage of any measure of importance, and 
at the same time with the actual existence of discord 
upon almost every subject of common-interest, the 
Congress was soon reduced to a condition of pitiful 
impotence. Most of the states refused to pay the 
requisitions levied on them. There were serious 
difficulties with foreign powers, involving the ful- 
filment of treaty obligations to England, the atti- 
tude of Spain toward the Mississippi, and the 
payment of the debt to France. By 1785 the cen- 
tral government had literally fallen to pieces, shat- 
tered by the blows received from the jealousy and 
particularism of the individual states. Between 
the states themselves there was a feeling of hostil- 
ity that resulted in the restriction of trade by the 
imposition of unfriendly tariffs. 

Moreover, there was widespread financial dis- 
tress throughout the various states of the con- 
federacy. The long strain of the eight years’ war 
had left a large and clamorous debtor class ready 



for any measures to relieve their sufferings, 
while an epidemic of paper money added to the 
general distress. Massachusetts had felt the force 
of social disorder in the proceedings of the mal- 
contents who followed Shays ; and in the suppres- 
sion of courts, plundering of towns, and armed 
intimidation of officers, the commonwealth came 
face to face with the problems of anarchy and 
social revolution. By 1786 it was apparent that 
the Articles of Confederation, as an instrument of 
government, was utterly ineffective. It was seen 
that it must be supplanted by some other and more 
effective form of political organization; but the 
shape which the government was to take could be 
foretold by none. The wisest statesmen and leaders 
feared for the safety and security of the country 
and looked with the very gravest fears upon the 
impending crisis. Under these circumstances the 
movement for a constitutional convention forced 
itself into acceptance, and in May, 1787, the 
ablest political thinkers in America met to amend 
the old form of government. The result of their 
deliberations was the Constitution. 

Accompanying these changes in political condi- 
tions, there were also pronounced differences in the 
tendency of political thought. The period of the 
Revolution had been largely one of destruction ; 
the new era was one of constructive effort. The 
period of 1776 required a philosophy of politics to 
justify rebellion against the mother country ; that 



from 1783 on was guided by the great purpose of 
establishing a firm national government on the 
ruins of a feeble confederacy. In response to the 
necessities of the case, there were consequently 
modifications of the old theory ; emphasis on 
points before passed lightly over ; failure to 
emphasize points upon which the greatest stress 
had been laid. 

In the Constitutional Convention there were 
clear-cut expressions of the change in sentiment 
since the days of 1776. These utterances present 
a striking contrast to the democratic enthusiasm 
of a few years before. For example, Gerry as- 
serted that “ the evils we experience flow from the 
excess of democracy,” ^ and expressed a belief that 
the people were the “dupes of pretended patriots.” 
He confessed that "he had been too republican 
heretofore ; he was still, however, republican, but 
had been taught by experience the danger of the 
levelling spirit.”^ Randolph said that in tracing 
the evils of the day to their origin, every man had 
found it “ in the turbulence and follies of democ- 
racy.”® Mason could only say that “notwith- 
standing the oppression and injustice experienced 
among us from democracy, the genius of the peo- 
ple is in favor of it, and the genius of the people 
must be consulted.”* These statements are sig- 
nificant of the change in attitude among the promi- 

' The Madison Papers, II, 753. * IHd. 

• Ibid. 758. * Hid. 788. 



nent men of the time. They had not abandoned 
their belief in the ultimate sovereignty of the 
people, but their faith in popular administration 
of the government had received a severe shock. 

Evidence of the change of sentiment is given by 
the Constitution itself. Its structure was in many 
respects less democratic than that of the states. 
The judiciary received broader powers and a life 
tenure of office; the executive was clothed with 
far more- ample powers than those given to the 
state governor, was assured of a four-year term 
and made reeligible indefinitely ; the senate was 
based on a six-year term ; there was not even a bill 
of rights, such as was found in the state constitu- 
tions. Although there were no religious or prop- 
erty qualifications, the general tendency of the new 
instrument of government was decidedly conserva- 
tive, and even reactionary, in its leading features. 

The submission of the Constitution for ratifica- 
tion or rejection was the signal for a discussion 
of the principles of political theory and of govern- 
ment, in which the ablest minds in the states 
participated.^ Of all the defences of the proposed 
Constitution, the Federalist is universally conceded 
to be the ablest and the most important. The 
eighty-five numbers of this series were published 
between October 27, 1787 and August 15, 1788, 
above the signature of “Publius.” The authorship 
^ Cf. Pamphlets on the CenstituHon, edited by P. L. Ford. 


of the papers was divided among Hamilton, Madi- 
son, and Jay ; but the number produced by each 
is still a subject of some controversy. 

In considering the political theory of the Feder- 
alist, allowance must be made for the fact that it 
makes no pretence to the dignity of a carefully 
developed, well-matured treatise on the science of 
politics. On the contrary, the papers were pre- 
pared in haste and were written in defence of a 
particular system of government at that time 
before the people of New York for their consid- 
eration. The Federalist was an advocate’s plea 
for the Constitution, not the dispassionate system 
wrought out by some thinker upon the general 
principles of politics. Such references as are 
made to political science in the general sense, 
are incidental to the discussion and subordinate to 
the main purpose, which was the persuasion of the 
popular mind to the adoption of the Constitution. 

In examining the Federalist one soon notices 
that the revolutionary tone of unrestrained demo- 
cratic enthusiasm has disappeared. The dominant 
note is that sounded by the statesman, not the 
alarm bell of the revolutionist. The experience of 
the past ten years has taught that even where it 
is recognized that all men are created equal, and 
endowed with certain inalienable rights, there may 
be difficulties of the most perplexing character in 
actual administration. Unmistakable is the mean- 
ing of the statement that “the citizens of America 



have too much discernment to be argued into 
anarchy ; . . . experience has wrought a deep and 
solemn conviction in the public mind that greater 
energy of government is essential to the welfare 
and prosperity of the community.” ^ A govern- 
ment of law alone and without any coercive power 
would be good, but such a system has “ no place 
but in tlie reveries of those political doctors, whose 
sagacity disdains the admonitions of experimental 
science.’’ * 

Proceeding to the more systematic doctrines of 
the Federalist, that of the origin and basis of gov- 
ernment may be first noted. Here it is discovered 
that the Federalist indorses the same views as 
were prevalent during the Revolutionary times. 
It suggests an original state of nature in which 
every man is endowed with a full equipment of 
natural rights ; and finds the institution of govern- 
ment arising from the cession of certain of these 
natural rights through the familiar form of the 
social contract.® 

The basis of government is the consent of the 
people, “that pure, original fountain of all legiti- 
mate authority.”^ The nature of government 
receives the same Revolutionary characterization 
already noticed, especially in the theory of Paine. 
Government is necessary, because the passions of 
men are so unruly as to require restraint. Pure 

1 No. 36, Dawson’s edition. * No. 28. 

* Noi. 3, 43, 50. * No. 23. 



reason must be reenforced by a coercive authority 
And again it is announced that “ government is the 
greatest of all reflections on human nature. If men 
were angels, no government would be necessary.” 

In short the Federalist accepts the fundamentals 
of contemporary political theory without much pro- 
test. The original state of nature, the social com- 
pact, the necessary-evil theory of government — 
the staple of eighteenth century political science — 
none of these doctrines was openly called in ques- 
tion. In fact it could hardly have controverted 
these ideas, even if so disposed, so deeply were 
such notions impressed upon the public mind, and 
so universally were they recognized in the political 
instruments of the time. So far, however, as the 
main argument of the Federalist is concerned, it 
rests in no way on these ideas, and is but little 
related to the political theory embodied in them. 
There is not very much said, after aU, about the 
rights of man, the natural equality of men, the 
tyranny of kings, and the other doctrines of 
the philosophy that characterized the Revolution. 
The proportion of Revolutionary theory has notice- 
ably declined. 

It is now proposed to examine the theory of the 
Federalist at those points where it showed more or 
less deviation from the lines of the revolutionary 
argument The doctrine first discussed concerns 
1 No. 15. 



the relation between the territorial extent of a 
country and democratic government One of the 
most frequent, and, indeed, one of the most trouble- 
some, objections, that the supporters of the Constitu- 
tion were obliged to meet, was the contention that 
a republican form of government could not be 
successfully operated over so large a territory as 
would be included in the United States. The 
only form of government capable of adminis- 
tering the affairs of so vast a country, would 
necessarily be a despotic one. In support of 
this doctrine the eminent authority, Montesquieu, 
was quoted to the effect that “it is the nature of 
a republic to have only a small territory ; without 
this it could scarcely exist.” ^ Exceedingly jealous 
of their local liberties, many of the citizens of the 
various states regarded the establishment of a 
strong central government as practically equiv- 
alent to the erection of a despotism over them. 
To consent to such a government as that proposed 
by the Philadelphia convention, they considered as 
simply fastening the chains of slavery around them. 
Historical precedent was against the proposed gov- 
ernment, for the great democracies of the past had 
been confined to limited areas of territory. Greece, 
Rome, the Italian Republics, so called, were all 
of small extent. It was necessary, therefore, 
for the defenders of the Constitution to present 

' Esprit des Lois^ Book VIII, i6. But he expressly indorsed the 
federation composed of small republics, IX, i. 


an explanation and justification of the new con- 

The Federalist's argument in defence of the 
Constitution was directed along the following lines. 
It was urged that the modern system of represen- 
tation enables government to extend over far 
wider limits than would otherwise be practicable. 
While in ancient times it was true that the limit 
of a democracy was that size which would allow 
all the citizens to assemble in order to exercise the 
necessary public functions, by the modern plan 
the limit is that extent which will allow the repre- 
sentatives of the citizens to assemble.^ Again, as 
between large and small republics, the larger state 
has the advantage in this respect, that its officers 
are chosen from larger numbers, and hence the op- 
portunities are greater for the selection of able men. 
The broader the field or range of choice, the greater 
the chance for a good selection, is the argument.® 
A third reason in favor of a large state is that in- 
creased size will afford a wider variety of interests. 
Now, the larger the number of these, the greater 
the difficulty of forming such a combination as will 
lead to thetyrannical ruleof any onefaction.® Hence 
the greatest possible security for the rights of the 
individual is found where there is a large number 
of different interests in the given community ; 
and the larger the number, the greater the diffi- 
culty of forming a dangerous combination. In 
^ Nos. 14* 62. * No. 10. * No, 50* 


Rhode Island, for example, there is only a small 
extent of territory to be ruled and only a few 
groups to be considered. Under these conditions 
it seems that any particular interest is in the high- 
est degree insecure. But in the United States, 
with its vast area and great variety of occupa- 
tions, there must of necessity be such a balancing 
of claims as will render the domination of any 
one, or even of a few interests, impossible.^ 

The Federalist's discussion of forms of govern- 
ment is interesting and suggestive, particularly in 
respect to the “ Republic.” ® This is defined as 
“ a government which derives all its powers, 
directly or indirectly, from the great body of the 
people, and is administered by persons holding 
their offices during pleasure, for a limited period, 
or during good behaviour.” ® The essential fact 
is that the government derives its authority from 
the great body of the society and not from any 
particular class. The method of election may be 
indirect, the tenure of office may be almost per- 
manent, but these facts do not detract from the 
republican character of the government, provided 
the ultimate responsibility rests with the great 
body of the people. The distinction between a 
pure democracy and a “ republic ” consists, accord- 
ing to the Federalist, mainly in two points : first, 

* This was a favorite idea of Madison. 

* The discussion of the federal-national character of the new 

Union is given in Chap. VII, infra. * No. 38 . 



in the more complete development, in the republic, 
of the representative idea; and, secondly, in the 
greater territorial extent of the republic. 

The common division of governmental powers 
into legislative, executive, and judicial was adopted 
by the Federalist as one of the axioms of political 
science.^ The advocates of the pending constitu- 
tion were forced to meet, nevertheless, the ob- 
jection made by certain jealous admirers of liberty, 
that the proposed plan of government did not re- 
spect this fundamental principle — that, on the con- 
trary, the three classes of power were dangerously 
confused. It was pointed out that the legislature 
might impeach and convict the executive, that the 
executive would appoint the judiciary, and that 
the senate would confirm appointments and ratify 
treaties. To these plausible arguments the Federal- 
ist replied by a closer examination of the theory of 
the tripartite division of powers. This doctrine, 
it was held, does not imply or require that each 
of the several departments is to be absolutely 
and entirely isolated from the others ; or that one 
department is to have no influence whatever on 
the determinations of another. The only danger 
to be averted is that the whole power of any two 
or more departments might pass into the same 
hands, as would be the case if one governmental 
organ should obtain both the law-making and the 
law-executing power, or the executive and the 


judicial power. This, it was claimed, was the 
proper interpretation of the doctrine, and the view 
actually taken by the states in framing the Revo- 
lutionary constitutions. Not only was the radical 
theory deemed incorrect, but it was regarded as 
wholly impracticable and even dangerous. It is 
not possible, so argued the Federalist, to separate 
governmental organs in any measure whatever 
unless they are so connected and related as to give 
each one a certain control over the others. It is 
entirely insufficient to delineate “parchment bar- 
riers ” against the encroachments of one depart- 
ment upon another. There must be provided 
some constitutional means by which each depart- 
ment may exercise a certain restraint on the en- 
croaching tendencies of the others. It is well 
enough to write down in the Constitution the 
declaration that the three sets of powers must 
be distinct and independent, but unless the de- 
partments are interrelated there will be no separa- 
tion whatever. ^ In other words, the greatest and 
strongest barrier against consolidation and con- 
centration of power is the mutual interrelation 
and interdependence of the various departments. 
The Federalist abandoned the doctrinaire theory 
of the absolute separation of the functions of gov- 
ernment, as it was stated, for example, in the Mas- 
sachusetts constitution. In fact, it was definitely 
admitted that it was wholly impossible accurately to 
' Nos. 46-50. Cf. James Wilson, Warts, I, 368. 



define the boundary lines between the various de- 
partments, and consequently the true policy was to 
devise such a balance of interests and motives as 
would insure, not an absolute separation, but a sub- 
stantial and enduring interdependence of the three 
classes of powers. 

In addition to the threefold division of powers, 
the Federalist called attention to another method 
of securing a constitutional equilibrium. The 
new theorj now advanced was that the states 
and the Federal government would be balanced 
against each other, while within both state and 
Federal governments there would be a balance of 
legislative, executive, and judicial organs. The 
different governments would control each other, 
and at the same time each would be controlled by 
a division of powers within itself. This unique 
arrangement, it was urged, afforded additional 
guaranty that the government would not easily 
become an instrument of tyranny.^ 

The discussion in detail of each of the three 
classes of power — the legislative, the executive, and 
the judicial — is a masterly treatment from the side 
of constitutional law, and also reveals many devia- 
tions from the radical political theory of the pre- 
ceding decade. In the Revolutionary constitutions, 
as already seen, the executive power was in dis- 
repute, and the legislative the object of popular 
confidence. The executive authority suggested 
1 No. 5a 



both the provincial governor and the English 
crown, and consequently an effort was made to 
get as far as possible from the establishment of a 
powerful head of the administration. The legis- 
latures, however, had been left almost entirely free 
from restraint. Independence from England hav- 
ing been gained, it appeared that the greatest 
danger was not the undue predominance of the 
executive, but the aggressive disposition of the 
legislature. This view the Federalist adopts and 
expounds in the discussion of the three classes of 

It was made clear that in republican governments 
the greatest danger to liberty arises from the ex- 
panding power of the legislative body. The 
legislature, being chosen directly by the people, 
seems to fancy itself the people, and to consider 
itself as the superior of the other branches of gov- 
ernment. The legislators come to believe that the 
“ exercise of rights by either the executive or 
judiciary, is a breach of their prerogative and an 
outrage to their dignity.” ^ Hence it is exceedingly 
difficult for the other powers to maintain the con- 
stitutional and governmental equilibrium desired. 
Instances of this are given, notably the case of 
Pennsylvania. The testimony of Jefferson is cited 
to the effect that in Virginia " all the powers of gov- 
ernment result to the legislative body,” and that 
“ 173 despots would surely be as oppressive as one.” 

^ No. 70, Cf. James Wilson, II, 286, 393. 


This dangerous superiority of the legislature is 
attributed, first to the fact that its constitutional 
power is generally more extensive and also is less 
susceptible of precise limitation than that of the 
other departments ; secondly, to the fact that the 
legislature has access to the pockets of the peo- 
ple, on the one hand, and on the other exerts an 
influence on the pecuniary rewards of the other 

The Fediralist's observations on some other 
features of the legislative power are also worthy 
of note; for example, on the subject of the bi- 
cameral system. All single legislative bodies, it is 
said, are apt to be impulsive, passionate, violent.^ 
They are liable to be drawn by unscrupulous 
leaders into hasty and intemperate measures, which 
on more mature reflection would never have been 
indorsed, and of which they will afterward re- 
pent.® On such occasions as this, when the 
assembly is carried away by its passions and led 
to the verge of unwise action, we require the in- 
fluence of “ some temperate and respectable body 
of citizens to check the misguided career . . . 
until reason, justice, and truth, can regain their 
authority over the public mind.”® Such a body 
the United States Senate was to be. 

The basis of representation in the lower House, 
it was said, is not individuals, or even all interests.* 
The representation of every class is impossible; 

*No. ^ 

1 No. 6i. 

* No. 62. 




but that of certain general interests is both prao 
ticable and prudent. The Federalist holds that 
this representation will be included under three 
classes; (i) merchants, (2) landed interests, (3) 
learned professions. The merchants will natu- 
rally represent the artisans and manufacturers, as 
their interests are to a great extent identical. The 
mercantile class will be opposed by the landed 
interests, while the learned professions will hold 
the balance between the two. Thus the Federalist 
outlines an equilibrium of interests, on the basis of 
the natural antagonism between the mercantile 
and agrarian groups, and the assumption that the 
learned and professional classes have the power to 
mediate between them. 

Another interesting argument employed at this 
time was that in regard to the proper size of the 
legislature. It was frequently urged against the 
Constitution that the number of representatives, 
particularly in the lower House of Congress, was by 
far too small. It was pointed out that in a house 
of 65 members, 33 would form a quorum, and 17 
might then pass a bill ; and that in the Senate, 8 
members might pass a bill. The constitutional 
provision was consequently denounced as utterly 
inadequate for the purposes of effective representa- 
tion of the people and security of their interests. 
There was only the shadow of representation, it 
was said, not its substeince. 

The Federalist replied to this criticism by calling 



attention to the fact that a large legislature may be 
less faithfully representative of the people than a 
small one. After reaching a certain number in 
the assembly, — that is, a number sufficient “ for the 
purposes of safety, of local information, and of 
diffusive sympathy with the whole society,” ^ — the 
addition of other members will defeat the attain- 
ment of the very ends desired. It will be found 
true that the greater the number of legislators, the 
fewer will be the number of those who actually 
direct the proceedings; and furthermore that the 
greater will be the ascendency of passion over 
reason. Or, as the Federalist sums up the situa- 
tion : “ The countenance of the government may 
become more democratic, but the soul that ani- 
mates it will be more oligarchic. The machine will 
be enlarged, but the fewer, and often the more 
secret, will be the springs by which its motions are 
directed.” ^ 

Passing from the discussion of the legislature, 
it is important to observe the Federalisfs theory 
of the executive. While the burden of suspicion, 
in the minds of many leaders at least, had been 
largely transferred from the executive to the legis- 
lature, there was still a lively anxiety on the part 
of others lest the President of the Union might 
acquire powers that would in time become equiva- 
lent to those of a monarch. Both the amount 
of authority vested in the chief executive and the 

iNo. S7. Cf. ss, 56. «No.s8. 


tenure upon which it was held were objects of 
pronounced hostility 

The Federalist, however, contended boldly for 
an energetic executive, maintaining that this is 
essential to any efficient government.* A vigorous 
executive, it was said, is by no means contrary to 
the genius of republican government. There is 
nothing in the nature of free institutions making 
it necessary that the executive should be subject 
to every impulse that sways the popular mind.* 
Republican government, the argument continued, 
does not and should not signify a political system 
in which the popular voice is to be obeyed instanter. 
It is right that the will of the people should pre- 
vail, not immediately, however, but ultimately; 
for while the people are generally desirous of the 
public good, it is not true that they always reason 

1 This is vividly illustrated by a quotation from the Federalist: 
"The authorities of a magistrate, it is said, in a few instances 
greater, in some instances less, than those of a governor of New 
York, have been magnified into more than royal prerogatives. He 
has been decorated with attributes, superior in dignity and splendor 
to those of a king of Great Britain. He has been shown to us with 
a diadem sparkling on his brow and the imperial purple flowing in 
his train. He has been seated on a throne surrounded with minions 
and mistresses, giving audience to the envoys of foreign potentates, 
in all the supercilious pomp of majesty. The images of Asiatic des- 
potism and voluptuousness have scarcely been wanting to crown the 
exaggerated scene. We have been taught to tremble at the ter- 
rific visages of murdering janizaries, and to blush at the unveiled 
mysteries of a future seraglio.” No. 66. 

* No. 70. 

• No. 7a 


correctly about the means of obtaining that good.^ 
In the construction of a governmental system 
we ought, therefore, so to dispose the organs of 
government as to enable us to consult the reason 
of the people ; not their temporary, transient emo- 
tions, but their deliberate judgment. And there 
should be certain persons whose duty it is to stem 
the tide of popular passion, and give cooler judg- 
ment opportunity to assert itself. One of the most 
important organs for the accomplishment of this 
purpose is the executive department of the gov- 

On the whole, the Federalist' s discussion of the 
legislative and executive powers indicates a decided 
change in political theory since the days when the 
legislature had been implicitly trusted and the 
executive degraded and despised. There is now 
manifested a decided suspicion of the legislature, 
and great anxiety as to the possible extent of 
its encroachments. On the other hand, there is a 
strong disposition to revive the executive depart- 
ment and intrust it with substantial powers. 

As to the judicial department, the general phi- 
losophy of the Federalist was as follows. The 
judiciary was regarded as always the least dan- 
gerous to the liberties of the people.® This de- 
partment has neither force nor will, as have the 
other two organs, but possesses the power of judg- 
ment only. Hence the maintenance of good gov- 
I No. 70. * No. 77 ff. 


ernment has never been much imperilled by the 
courts, unless in combination with one of the other 
two departments. There is, however, great need 
that the judiciary be kept as far as possible inde- 
pendent in its position. This is particularly im- 
portant in a country which is governed under a 
limited Constitution. Here the function of the 
court is to act as final interpreter of the Constitu- 
tion, and to decide upon the conformity of all laws 
with that instrument This does not mean, ex- 
plains the Federalist, that the judicial is superior 
to the legislative power, but that the authority of 
the people is superior to both. For this reason, 
then, and in order to protect the rights of individ- 
uals against governmental oppression, the tenure 
of the judges should be permanent, in order that 
they may possess the proper independence. As 
in a despotic country this kind of a tenure serves 
as a barrier against the prince, so in a republic 
it is a useful protection against the encroachments 
of a despotic legislative body. 

The Federalist recognizes, as every observer of 
political phenomena must, the great difficulty in 
securing an energetic, stable government, and at 
the same time preserving the liberties of the peo- 
ple.^ The problem of the correct relation of liberty 
and authority is perennial. If governmental power 
,s not granted in large measure, the safety of the 
■ tate is endangered. If such authority is granted, 
J No. 36. 



there is likelihood of its abuse. The great argu- 
ment against the Constitution was, that it would 
endanger the liberties of the people. 

Admitting, however, that governmental power 
is liable to such abuse, the defence was made that 
inasmuch as confidence must be placed somewhere, 
it was better to risk its abuse by regularly constituted 
authorities than to embarrass the government and 
endanger the public safety by the imposition of 
unwise restraints upon all authorities. The Ameri- 
can people, said the Federalist, cannot be “ argued 
into anarchy ” by objections raised against all ener- 
getic government. Although the necessity of popu- 
lar vigilance over rights and liberties is recognized, 
it must be remembered that, however useful jeal- 
ousy may be in a republic, “ yet when, like bile in 
the natural, it abounds too much in the body politic, 
the eyes of both become very liable to be deceived 
by the delusive appearances which that malady 
casts on surrounding objects.” * Love of liberty, 
then, does not always require a bilious jealousy of 
all government. 

The Federalist was not an advocate of bills of 
rights such as were found in the Revolutionary 
state declarations. The preamble to the Constitu- 
tion, it was said, is “ a better recognition of popular 
rights, than volumes of those aphorisms, which 
make the principal figure in several of our state 
bills of rights, and which would sound much better 
I No, 63. 


in a treatise of ethics, than in a constitution of 
government.” ^ No statement better expresses the 
marked change of attitude since the days of the 
Revolution. In 1776, to have referred to the dec- 
larations of rights as “ aphorisms ” which properly 
belong only to the domain of ethics, would have 
been almost equivalent to high treason, but in a 
few years the inalienable rights of man are thus 
lightly passed over. 

Furthermore, it was argued that bills of rights 
are in general inapplicable to constitutional gov- 
ernments. They originated as agreements between 
ruler and subjects — abridgments of royal prerog- 
ative. In a popular government, however, “the 
people surrender nothing ; and as they retain 
everything, they have no need of particular reser- 
vations.” * Such specific restrictions have no 
application to governments which are founded 
directly on the act of the people and “ executed 
by their immediate servants and representatives.” 
This is true of all types of popular government, 
but is more than ever applicable to a confederate 
government, where the central authority has no 
power except that conferred upon it by the Consti- 
tution. In such a case the Constitution is itself 
the “ bill of rights of the Union,” and a separate 
declaration would be not only unnecessary but 
dangerous. “Why declare things should not be 
done, which there is no power to do ? ” ® 

iNo. 84. 




1 19 

But the Federalist goes beyond this, maintain- 
ing that the whole scheme of securing liberty by 
mere constitutional restraints is a mistaken one. 
All such precautions as these are mere paper bar- 
riers vainly raised up against the spirit of en- 
croachment.^ The true guaranty of liberty in a 
republican government lies in the fact that the 
political power belongs to the representatives 
chosen by the people themselves.^ The govern- 
ment is in the hands of agents who derive then- 
power from and are responsible to the people. If 
these chosen delegates betray their trust, there is 
then no resource left but the exertion of that 
“ original right of self-defence, which is paramount 
to all positive forms of government.” The guar- 
anty that free institutions will be maintained, rests 
in the last analysis on the “ general genius of the 
government.” This alone can be relied upon for 
enduring results: “particular provisions, though 
not altogether useless, have far less virtue and 
efficacy than are commonly ascribed to them.”® 
It is the spirit and temper of the people in which 
confidence must be placed, rather than the written 
word embodied in an instrument of government. 

In judging the political theory of the Federalist, 
it cannot escape notice that the “natural-right” 
philosophy lies at the basis of its system. But 
no more can it pass unnoticed, that the doctrines 
of natural rights and the social compact, while 

1 No. 47. 

» No. 83. 

* No. *8. 



formally accepted, are but infrequently employed 
in the course of argument. The truth is that 
popular interest in these doctrines, so widely 
proclaimed during the period of Revolution, had 
suffered a pronounced decline. The enthusiasm 
of the first resistance, the spirit of which was 
so eloquently expressed in the Declaration of 
Independence, had died down. The country 
had passed through the trj'ing years of the 
war and the critical period, had come close up 
to the edge of anarchy, and was now ready for 
the establishment of government and law at any 

Nowhere is the change in the dominant senti- 
ment of the people more deeply marked, nowhere 
more clearly expressed, than in the Federalist, which 
may fairly be taken as representative of the class 
or classes of people whose support secured the 
adoption of the Constitution. Comparison of the 
writings of 1763-1776, and their bold and sweep- 
ing generalizations about the rights of man, with 
the conservative utterances of the Federalist, re- 
veals an unmistakable change of feeling and opinion. 
The contrast is strongly marked. The Revolu- 
tionary period emphasized the rights of man, the 
Federalist the necessity of government ; the Revo- 
lutionary period demanded government of a more 
democratic character, the Federalist asked for a 
government of a less democratic nature. Annual 
elections, the feeble executive, the omnipotent legis- 



lature, the absolute division of governmental powers, 
with other planks in the ultra-democratic platform, 
were discredited by the leaders of the new school. 
In fact, the democratic philosophy of the eighteenth 
century was a perfect expression for the men and 
times of 1776; for it was essentially a philosophy 
of revolution. With the needs of 1787-1789, how- 
ever, it did not harmonize and could not easily be 
made to agree. The Declaration of Independence 
represented the political theory of the American 
people when it had “ become necessary to dissolve 
the political bands which had connected them with 
another.” The Federalist represented the time 
when it had become necessary " to form a more 
perfect union.” Its authors did not reject, but 
largely ignored, the rights of man. There was full 
recognition of the sovereignty of the people, but an 
impressive warning, reenforced by cogent examples 
from recent American history, was sounded against 
excessive democracy. 

In addition to this there were substantial contri- 
butions made toward the solution of new problems in 
political science. The federal state was discussed 
with remarkable acumen, the theory of the separa- 
tion of governmental powers was restated, the 
possibility of extending republican government 
over a large area asserted and argued, the doc- 
trine of government under a constitution developed 
and applied. In all this the authors of the Federal- 
ist were not in advance of the political facts of the 



time. The old theory was outgrown; they were 
formulating political theories adapted to the new 
state of things. 

The Federalist, however, was not the only expres- 
sion of the reactionary tendency in the theory of this 
time. Much more suggestive in this respect was 
the doctrine advanced by the great leader of the 
Federalist party — John Adams. ^ During the 
earlier part of his life, Adams had been one of 
the most outspoken and enthusiastic advocates of 
the radical movement. In these days he thought 
that government is "a plain, simple, intelligible 
thing, founded in nature and reason, quite com- 
prehensible by common sense.” He indorsed the 
maxim that “where annual elections end, there 
slavery begins ” ; favored stripping the governor 
of the “ badges of slavery called prerogatives ” ; 
and was vigorous in his declaration of the rights 
of man.* 

In little more than a decade, however, there was 
evident a pronounced change in the general char- 
acter of Adams’s theory.® Influenced by the turn 
that events were taking in America and by the 

1 See his life by C F. Adams j also the essay by Mellen Chamber- 
lain. See also “ The Politics of John Adams," by Anson D. Morse, 
in the American Historical Review, January, 1899, and the JVorks 
of Adams in ten volumes, edited by C F. Adams. 

* “Thoughts on Government,” 1776, Works, Vol. IV. 

* Some symptoms of a reaction appeared as early as 1776. See 
Adams’s Works, IX, 410, 435, 451. 



fear that certain principles of the French philoso* 
phy might obtain the ascendency here, Adams was 
led to formulate a system of political theory widely 
different from that which he held in earlier days. 
In the first period Adams was the bold champion 
of the Revolution, in the second period he was 
equally fearless in his advocacy of strong govern- 
ment and of aristocratic principles. 

The theory of Adams during this second period 
is contained in the two once famous, but now almost 
forgotten works, A Defence of the Constitutions of 
Government of the United States of America (1787— 
1788) and the Discourses on Davila (1790). The 
Defence was written in view of recent occurrences in 
Massachusetts, and also as a reply to an attack on 
the American system made by Turgot in a letter 
to the famous English theorist, Dr. Price (1778).^ 
One of the principal points to which Turgot took 
exception was the policy in the state constitutions 
of dividing the powers of government and institut- 
ing a system of checks and balances, instead of 
concentrating all governmental powers in a single 
sovereign body. Adams’s reply was a defence 
of the American system of balanced government 
against the French theory of centralized and un- 

^ Printed with Dr. Price’s Observations on the Importance of the 
American Revolution, and the Means of making- it a Benefit to the 
World. An extract from Turgot’s letter is given in Adams’s Works, 
IV, 278-281. Considerable attention was also given in the Defence to 
refutation of a radical English work by Marchamont Nedham, The 
Excellency of a Free State (1656), reprinted 1767* 



divided power. The first part of this book was 
published in time to find its way into the hands of 
the members of the Constitutional Convention, and 
doubtless exerted an influence there. The work, 
although hastily put together, was effective, and 
was widely read. That the author of so conserv- 
ative a treatise could be elected Vice-President 
of the United States shortly after, shows that its 
principles were not unfavorably received. 

The Discourses on Davila ^ was written in reply 
to the Four Letters of a Citizcfi of New Haven 
by Condorcet.^ These two works, the DefetKe and 
the Discourses, though now generally neglected, 
contain the substance of Adams’s ideas, and are 
invaluable for an understanding of the aristocratic 
theory of his time. 

Adams’s treatment of political theory evidences a 
wide acquaintance with political history and with 
the results reached by the greatest political thinkers. 
He discusses, in the course of his work, the his- 
tory of democratic governments in Greece, Sparta, 
Carthage, Rome, Italy, Switzerland, and the United 
Provinces. In the field of political theory he was 
familiar with the writings of Plato, Machiavelli, 
Harrington, Montesquieu, Sidney, Milton, and 
Hume. His conclusions were based upon an ex- 

I Davila, Dell' Istoria delle Guerre civile di Francia. 

* Quatre luettres d’un bourgeois de New Haven a un citoyen 
de Virginie, sur I’inutilite de partager le pouvoir legislatif entre 
plusieuis corps, 1788, 



tensive study (more extensive than intensive) of 
the world’s classics in political theory and practice.* 
This transition from a philosophy based on the 
“ rights of man ” to one emphasizing the historical 
method within little more than one decade is 
certainly impressive ; yet it was paralleled by the 
change of attitude seen in Edmund Burke dur- 
ing the same time. Adams’s change of opinion 
was by no means so radical, however, as that of 
Burke, although it followed the same direction. 

The chief points of interest in Adams’s theory 
may be included under three heads ; first, his dis- 
trust of unlimited democracy ; second, his defence 
of aristocracy ; third, his system of checks and 
balances. An analysis of these three leading doc- 
trines will be presented here. 

The great wave of democratic sentiment which 
had swept over the country during the latter 
part of the eighteenth century, the triumph of 
this movement in the Revolution, Adams’s own 
participation in the struggle, had been by no 
means sufficient to keep awake in him the senti- 
ments of an enthusiastic democrat. Such feel- 
ings had been excited, but they soon gave way 
to other and more characteristic tendencies of 
the man. Adams was not wholly anti-democratic, 
but he certainly did not share in that unqualified 
approval of democratic government which was 
so common, in theory at least, among his con- 

1 See Defince, Chaps. I-IX, 


temporaries. His comparative study of republican 
states had inspired in him a profound distrust 
for an unqualified democracy, which manifested 
itself throughout his later life. Some of his criti- 
cisms on the general theory of democratic govern- 
ment may be considered here. In the first place, 
Adams strongly objected to the common assertion 
that the people are incapable of tyrannical and 
oppressive conduct. “ We may appeal,” said he, 
" to every page of history we have hitherto turned 
over, for proofs irrefragable, that the people, when 
they have been unchecked, have been as unjust, 
tyrannical, brutal, barbarous and cruel as any king 
or senate possessed of uncontrollable power. The 
majority has eternally and without one exception 
usurped over the rights of the minority.” ^ 

The people, moreover, are not only prone to 
tyranny ; they are jealous, exacting, and suspicious 
to the last degree. They not only demand out- 
ward submission to their commands, but cannot 
endure even a mental dissent from their will. 
They “ will not bear a contemptuous look or dis- 
respectful word ; nay, if the style of your homage, 
flattery, and adoration is not as hyperbolical as 
the popular enthusiasm dictates, it is construed 
into disaffection ” ; and as a result the popular 
suspicion is aroused and their fury breaks out “into 
every kind of insult, obloquy, and outrage.”* 
Again, the people are no less given to luxury than 

1 Dtfinu, VI, la • Ibid. VI, 89 . 


are kings and nobles, although the latter are usually 
charged with the greatest extravagances. A free 
people, says Adams, is most addicted of all to the 
vices of luxury. 1 The simple democracy is, of all 
governments, most exposed to tumults and disorder, 
and such disturbances are most likely to be fatal in 
this kind of a state.* In short, it seems that no stable 
government can be built upon the foundation of an 
unlimited democracy. “All projects of govern- 
ment, formed upon a supposition of continual vigi- 
lance, sagacity, virtue, and firmness of the people, 
when possessed of the exercise of supreme power, 
are cheats and delusions.” ® 

There is, says Adams, no such thing as an ab- 
stract love of equality. There can be no love of 
democracy as an abstract conception, but only in so 
far as it stands for a certain advancement of individ- 
ual interest and advantage. Democracy is not de- 
sired for itself, but for what it brings with it, or for 
what it makes possible in the form of personal wel- 
fare. Or as Adams elsewhere says, “ Mankind in 
general had rather be rich under a simple monarchy 
than poor under a democracy.” * In brief, Adams 
maintains that there never was and never can be a 
pure democracy. In reality, “ democracy signifies 
nothing more nor less than a nation of people, with- 
out any government at all and before any constitit 
tion is instituted.” ® 

' VI, 95, */MAi66i 

* Ibid. 91 , *IHd 2 il. 



It is, nevertheless, unfair to reckon Adams 
among the opponents of free government. The 
attacks which he made were directed chiefly 
against immediate or unlimited democracy, and he 
was far from being hostile to popular government, 
properly checked and restrained. The common 
charges against him to this effect were founded 
upon a misapprehension of his true position. Al- 
though his assaults on democracy pure and simple 
were vigorously sustained, no language could be 
clearer than that in which he asserts the doctrine 
of popular sovereignty. “ The suprema potestas,” 
he declares, “ the supreme, sovereign, absolute, and 
uncontrollable power is placed by God and nature 
in the people, and they can never divest themselves 
of it.”^ All government depends upon and repre- 
sents the people. No government can exist longer 
than the people will to support it; they are the 
fountain of political power, and may vest authority 
wherever they choose. Adams held to the theory 
of popular sovereignty as the basis of government ; 
upon this point he was never uncertain, but he 
did not favor democratic government of the type 
which the French thinkers desired. All free 
government, he thought, ought to contain certain 
limitations upon the direct action of the people, in 

^ IVorkSf 469. Cf. VI, 1 13, to the effect that there can be no 
constitutional liberty, “ where the people have not an independent 
equal share with the other two orders of the state, and an absolute 
control over all laws and grants of money.” 



order to render excesses on their part difficult, if 
not impossible. 

The charge that Adams was opposed to demo- 
cratic institutions received support from the bitter- 
ness of his invective against unlimited democracy, 
and his not unfriendly attitude toward monarchy. 
For example, he said on one occasion that “a 
hereditary first magistrate at once would perhaps 
be preferable to elections by legislative representa- 
tives.” ^ Yet this was not the final opinion of 
Adams, for he said later of kings that he would 
“ shut them up like the man in the mask, feed 
them well, and give them as much finery as they 
please, until they could be converted to right 
reason and common sense.” ® But because of his 
criticism of certain phases of popular government, 
Adams was made the object of the bitterest denun- 
ciation, particularly by Jefferson and his associates. 
The object of his criticism, however, was not 
popular government as such, but certain evils aris- 
ing from the direct and unrestrained rule of the 
people. It is quite likely that if obliged to choose 
between this type of popular government, and mon- 
archy, he would have accepted the latter without 
much hesitation. This was particularly true in the 
days when the Constitution was being formed. 
After the Constitution was adopted and the gov- 
ernment established, he accepted the government 

^ Ibid. 122. 

* X, 409 (1S25). Letter to JeRenon. 



fully and without reserve. It was not a govern- 
ment of just the kind that he or Hamilton would 
have established, but it was far enough removed 
from extreme democracy to justify a fair trial. 

The political creed with which Adams is most 
closely associated is that of aristocracy, and to this 
phase of his theory we now turn attention. No one 
better expressed than he the theory of the “well- 
born,” and its wide divergence from the canons of 
political philosophy laid down in the Revolution. 
It has already been pointed out that the contem- 
porary interpretation and application of the prin- 
ciples of the Declaration offered many evidences 
of departure from its philosophical spirit. Adams 
goes farther than this, however, and attacks certain 
parts of the theory itself. He takes exception to 
the doctrine that all men are created equal. This, 
Adams declares, is not in accord with the facts, 
since “nature . . . has ordained that no two objects 
shall be perfectly alike and no two objects perfectly 
equal. . . . No two men are perfectly equal in 
person, property, or understanding, activity, and 
virtue.” ^ This is a clear contradiction of the Dec- 
laration, and even of his own earlier statements 
It is to be observed, however, that Adams does not 
deny that all men are born with equal rights; 
“ every being," said he, “ has a right to his own, as 
clear, as moral, as sacred as any other being has.” * 

» Works, VI, 285-286. 

* Ibid. 453. Letter to John Taylor (1814). 


This he does not wish to dispute, confining his 
protest to the teaching that all men are created 
with equal powers or faculties. Such a doctrine 
seems to him “ as gross a fraud ... as ever was 
practised by Druids, by Brahmins, by priests of the 
immortal Lama, or by the self-styled philosophers 
of the French Revolution.” ^ 

Adams held firmly to the idea that men are 
essentially unequal. If we take a hundred men at 
random, he says, we shall find among them, on the 
average, six wealthy, six eloquent, six learned, six 
having the gifts of eloquence, learning, and fortune, 
and six having art, cunning, and intrigue.* Thus 
we have an aristocracy of thirty among the hun- 
dred, — thirty men gifted with certain extraordi- 
nary qualities which enable them to rise above 
their fellow-men. The following quotation gives a 
good picture of Adams’s aristocrat: “Whenever I 
use the word aristocrat,” said he, “ I mean a citizen 
who can command or govern two votes or more in 
society, whether by his virtues, his talents, his learn- 
ing, his loquacity, his taciturnity, his frankness, 
his reserve, his face, figure, eloquence, grace, air, 
attitude, movements, wealth, birth, art, address, 
intrigue, good-fellowship, drunkenness, debauch- 
ery, fraud, perjury, violence, treachery, pyixhonism, 
deism, or atheism.”® 

The inequalities upon which Adams lays great- 
est stress in his theory are those of wealth, birth, 

* Ibid. 456 . * IHd. 457 . 




and education. These are the criteria by which 
the natural aristocracy may be most readily deter- 
mined. The people in general may be divided into 
two groups, the gentlemen and the simplemen.' 
Gentlemen are those who “ have received a liberal 
education, an ordinary degree of erudition in lib- 
eral arts and sciences,” and it will usually be 
found that those so endowed are also “well-born 
and wealthy.” The simplemen, on the other hand, 
or the common people, are “ laborers, husbandmen, 
mechanics, and merchants in general, who pursue 
their occupations and industry without any knowl- 
edge in liberal arts or sciences, or in anything but 
their own trades or pursuits.” Some of these may 
be true aristocrats, as some of the first class may 
be in fact common people, but in general the two 
classes may be divided by the line drawn. 

These two groups are to be found in every soci- 
ety, and inasmuch as they exist should be recog- 
nized in the government of the state. “ There is,” 
says Adams, “ a voice within us, which seems to in- 
timate that real merit should govern the world, and 
that men ought to be respected only in proportion 
to their talents, virtues, and services.” ^ The incor- 
poration of this aristocracy into the government, he 
regards as one of the greatest problems of political 
organization. The policy of Europe, he suggests, 
has been to connect “ lands, offices, and families ” 
and to have them all descend together, and along 

1 Ibid. 185. * Ibid. 249. 



■with them, “ honor, public attention, consideration, 
and congratulation.” ^ To this policy Europe owes 
its superiority over Asia and Africa. Adams as- 
serts that no well-ordered commonwealth has ever 
existed without hereditary nobility, and it is an easy 
inference that he considered such an institution 
advisable for this country as well, or at least looked 
with suspicion on the experiment of proceeding 
without an order of nobility. 

Adams would seem, then, to favor some system 
of hereditary nobility as the surest way of obtain- 
ing recognition for the virtue and talent of the 
community. This disposition leads him naturally 
to condemn the policy of rotation in office. It 
appears to him that such a requirement is really 
“a violation of the rights of mankind.”® It is a 
violation at once of the rights of the candidate and 
of the voter ; for one has a right to be chosen again, 
if efficient, and the elector to choose the officer for 
further service, if deemed advisable. No policy 
is so disastrous to the public interest as that of dis- 
charging, at fixed and arbitrary intervals, tried and 
experienced servants. Hereditary tenure is in 
general not inadvisable, and a life term of office is 
certainly commendable. The maxim “ non diumare 
imperia ” does not, in Adams's opinion, apply to 
a free government. Where there are republican 
institutions, authority may be safely given for a long 
term of years or even for life, without danger to 
1 Ibid. 251 . “ Ibid, 52 . 



the liberties of the people. On the contrary, such 
a policy of intrusting power in the hands of officers 
for long terms would really be one of the guaran- 
ties of continued free government. 

For the United States, Adams seemed to be 
not averse to a life tenure for the chief executive, 
or even an hereditary tenure. He indicated that 
terms of office may be extended until they reach 
the life limit, and if this is not found sufficient, 
they should be made hereditary. “The delicacy 
or the dread of unpopularity,” said he, “ that should 
induce any man to conceal this important truth 
from the full view and contemplation of the people 
would be a weakness if not a vice.” ^ The elective 
method, wherever tried, has been found to be a 
failure; the system of hereditary tenure has the 
sanction of history — the prestige that comes 
from years of successful operation. The inference 
is that Adams looked to see the old system restored 
in this country.^ 

From these passages, then, it is clear tha^ Adams 
had no sympathy with the radical ideas of human 
equality, rotation in office, and unlimited demo- 
cratic government. He was essentially aristocratic 
in his ideas. Birth, wealth, education — these 
were the points on which his eye was fixed, these 
were the elements for which he desired recognition 

1 Ibid. 67. 

‘ Cf. Hamilton's proposition in the constitutional convention. 
See bis Works, II, 393 ff. 



and to which he would accord supremacy in the 
administration of political affairs. He believed 
in popular sovereignty as the basis of political insti- 
tutions, and the popular welfare as their goal ; but 
he had very little confidence in the ability of the 
mass of the people to administer the government 
successfully, or even to choose their rulers properly. 
The common people are the basis of the state, but 
the guiding hand in the affairs of government 
must be that of the gentlemen, the “ well-bom.” 

The relation of John Adams to the radical theory 
of his day is well illustrated by a correspondence 
upon this very question, between him and Samuel 
Adams ( 1 790).^ This interchange of views was oc- 
casioned by recent events in France, and it brings 
out clearly the markedly aristocratic tendencies of 
the one, and the equally pronounced democratic 
opinions of the other. John Adams, in his letters, 
defends the institution of nobility, upholds the 
superiority of the well-bora, hints at hereditary 
rather than elective tenure of office, and betrays 
throughout a profound distrust of the self-govern- 
ing capacity of the people. 

Samuel Adams, replying, upholds the doctrine 
of popular rule, and criticises John Adams’s state- 
ment that the people should have merely a share in 
the government. He asserts that the selection of 
rulers by frequent elections is superior to the sys- 
tem of hereditary tenure ; for, conceding that people 
1 Wells, Samuel Adami^ III, 297 fiL 


may be occasionally deceived, the evil is not incura 
ble and certainly will not long endure. The requi- 
site remedy will be near at hand, whereas under an 
aristocratic system there is no easy way out of the 

John Adams suggests doubts as to the practicabil- 
ity of democratic government, because of the high 
degree of popular intelligence and virtue required 
for the successful operation of such a system. 
The rejoinder is that the American people do 
possess this extraordinary capacity for govern- 
ment ; and furthermore, that these qualities may be 
strengthened by means of general education. The 
theory of the “ well-born,” Samuel Adams dissents 
from emphatically. The natural aristocracy, he 
maintains, is likely to be found among men of all 
ranks and conditions, regardless of birth. The 
cottager may beget a wise man ; the noble a fool ; 
hence the boundary lines of natural aristocracy are 
exceedingly difficult to draw, and cannot on the 
whole be safely marked out. 

Probably the most conspicuous idea in John 
Adams’s theory is that of an elaborate system of 
checks and balances in the organization and opera- 
tion of the governmental system. The Defence was 
written, as already pointed out, in reply to Turgot’s 
attack on the American plan and apology for the 
French idea of the centralization of powers, after- 
ward illustrated in the French Revolution. To re- 
fute this argument, Adams collected evidence from 



the days of the Grecian and Roman republics down 
to modern times, and from the opinions of eminent 
philosophers beginning with Plato. He endeavored 
to show that unlimited and unchecked government 
had been everywhere attended by disaster, particu- 
larly when such government rested upon a popular 
basis. The earnestness of his belief in the neces- 
sity of a system of balances is indeed accountable 
for what is taken as dislike of democracy. In 
reality, his point of attack was not popular govern- 
ment in general ; but that particular type of democ- 
racy lacking the necessary restraints. 

The subject next claiming consideration is, then, 
Adams’s system of checks and balances. Here his 
arguments meet the French theory advanced by 
Turgot, that an equilibrium of governmental 
powers is necessary only under a monarchical gov- 
ernment and not required where republican insti- 
tutions exist. In every state there must be, said 
Adams, a first magistracy, a senate or little coun- 
cil, and a larger assembly.^ These three classes 
represent respectively the monarchical element in 
the government, the aristocratic element, and 
the democratic element. No constitution lacking 
these three elements can remain secure. Their 
existence and balance is essential to the main- 
tenance of peace and liberty.^ They have, he 
declares, “an unalterable foundation in nature.” 

1 Works, IV, 379. Cf. Harrington, Oceana (1656), (Morley’s 
edition), 29 et seq. ^ Hid. 579. 


The best expression of this idea is found in 
the British Constitution, which he looked upon 
as “the most stupendous fabric of human inven- 

The people alone, as Adams reasons, are un- 
worthy of trust, unless restrained by the balances 
which are advocated, and aristocracy and the mon- 
archy alone are also prone to abuse the power in- 
trusted to them. Adams takes particular pains to 
combat any objection to placing power in the hands 
of the monarch. An alliance between monarchy 
and democracy, he points out, has been necessary 
in order to make headway against the encroaching 
tendencies of the aristocracy ; and it is in reality 
the people themselves who have supported the 
absolute king against the petty lords. Monarchy 
and aristocracy he considers as natural foes. It is, 
therefore, Adams suggests, the best policy on the 
part of the common people to intrust the whole 
executive power to one man, so that he may stand 
out as a distinct order in the state. There will 
then inevitably arise a jealousy between him and 
the aristocracy, and this very jealousy will force 
the monarch to ally himself closely with the com- 
mon people, to become their guardian and their 
protector, and to keep in check all who might 
otherwise endanger the safety of the state. Adams 
saw what few Americans of his day perceived, 
namely, that absolute monarchy had rested upon a 
1 Worh, IV, 358. 


popular basis and had really constituted an alliance 
between crown and people against the aristocracy. 

Adams’s plan is, then, to provide for the repre- 
sentation of the aristocracy in one branch of the 
legislature ; in another for the representation of 
the people ; and finally to place as an umpire and 
arbiter between them a strong executive power. 
This arrangement of governmental authorities will 
secure the equilibrium of forces necessary to the 
welfare of the state. It will obviate the grave 
difficulties presented by a simple and wholly unified 
plan of government, by preventing the extrava- 
gances to which any one of these powers alone and 
unchecked is prone. 

This, however, was not the only balance of 
powers which Adams discussed. In later years 
he called attention to the organization of govern- 
ment under the Constitution of the United States, 
which presents a system of checks and balances 
even more intricate and complex than the tripar- 
tite plan just examined. In the federal govern- 
ment Adams discovers no less than eight different 
kinds of balances. These are as follows : ist, 
the states and territories against the federal gov- 
ernment; 2d, the House against the Senate; 
3d, the Executive against the Legislature ; 4th, 
the Judiciary against the House, the Senate, the 
Executive and the state governments ; sth, the 
Senate against the President in respect to appoint- 
ments and treaties; 6th, the people against their 



representatives ; 7th, the state legislatures against 
the Senate; 8th, the electors against the people. 
Here are certainly ample guaranties against hasty 
action on the part of any organ of the federal 
government, and it is apparent that Adams so 
considered them.^ 

When Adams entered into active political life 
under the new federal Constitution, he no longer 
gave expression to sentiments which could so 
easily be interpreted as unrepublican in character. 
It is likely that he considered the new government 
as embodying in many of its features the prin- 
ciples he had laid down. The new Constitution 
was certainly more in harmony with Adams’s ideas 
than with those of the French theorists whom 
he combated. In his inaugural address of 1797 
Adams declared that no change in the existing 
government was intended. He commented on the 
essentially popular basis of the government with 
evident satisfaction and pride. He declared his 
preference for free republican government, and 
his firm attachment to the United States Constitu- 
tion. In terms that suggest the inaugural of four 
years later, he discoursed fluently on his regard for 
virtuous men of all parties, and his love for equal 
laws, for justice, and for humanity.^ It would, 
therefore, be unfair to maintain that after the Con- 
stitution was once put in force, Adams demanded 
a monarchy and hereditary aristocracy. 

- Works, VI, 467 (1814). ’ IX, 105 ff. 



He even denied that any such idea could, by fair 
construction, be deduced from his writings, and as- 
serted that “ they were all written to support and 
strengthen the Constitution of the United States.”^ 
He continued to defend with unabated vigor, how- 
ever, the doctrine of the inequality of men, and the 
necessity of elaborate checks and balances. To 
Jefferson he wrote (1815) : “ The fundamental prin- 
ciple of my political creed is, that despotism, or 
unlimited sovereignty, or absolute power, is the 
same in a majority of a popular assembly, an 
aristocratic al council, an oligarchical junto, and a 
single emperor.” 2 This was, in fact, the funda- 
mental proposition in Adams’s political philosophy, 
and explains his frequently undemocratic phrases. 
He feared the unlimited power of the people as 
well as the unlimited power of either nobility or 
king ; and was steadfastly opposed to any system, 
popular or otherwise, which was not so constructed 
as to limit and restrain the governing powers. In 
America he considered that the despotism imminent 
was that of the people, hence his criticisms were 
directed mainly against them. 

Such was the character of the reactionary theory 
prevalent during the early years of the republic. 
With some modifications this doctrine continued 
to manifest its existence during the first quarter 

* X, 54. Cf. VI, 463, stating that they were written in defence 
of the Massachusetts constitution. ^ X, 174. 



of a century of the newly established Union. 
It found expression in the demand for a strong 
central government, in a pronounced dislike for 
the French Revolution, particularly in its later 
phases, in a certain liking for form and ceremony. 
It would be wide of the mark to say that the Fed- 
eralists accepted all of the theory of Adams as 
stated in the works just analyzed. This he did not 
do himself in his later years. But the spirit of this 
work — the distrust of democracy and the tender- 
ness for the “ well-bom ” — was characteristic of 

* Cf. Publicola, a series of letters by John Quincy Adams in reply 
to Paine’s Rights of Man, 1791. 

A careful exposition of early American principles is preserved 
in the lectures given by James Wilson before the Law School in 
Philadelphia, 1790-92. See Wilson, Works, edited by J. D. 
Andrews, 2 vols., 1896. 

Wilson laid great stress on the theory that law and political 
obligation do not come from a superior, but are created by the vol- 
untary agreement of individuals, — "the consent of those whose 
obedience the law requires ” (I, 88). He regarded even a private 
contract as really constituting a law. “ Why not,” said he, “ if it 
had all its essential properties ? ” He denied that there was any 
contract between king and people or between governor and gov- 
erned, maintaining that the agreement is one between the individual 
and the whole society. 



No sooner was the new Constitution put into 
actual operation than there began a decided move- 
ment away from strong government and toward 
individual and states rights. It seemed almost 
as if the people were alarmed at what they had 
done, and were anxious to neutralize its effect. 
In addition to this perhaps natural reaction after 
the violent agitation in favor of a strong govern- 
ment, there was the powerful stimulus given to 
democracy by the French Revolution, especially in 
its earlier years. This great event aroused the 
democratic spirit throughout Europe, and was not 
without its effect on America.^ Nor should it be 
forgotten that just at this time Jefferson returned 
to his native land, ready to organize and give form 
to the scattered democratic tendencies. Under 
these auspices the new movement rapidly gained 
strength, and in little more than a decade was able 
to triumph over the Adams-Hamilton party. 

The most marked characteristic of this move- 
ment was the antipathy shown toward everything 

I On this subject see the interesting study by Charles D. Hazen, 
Centemporary American Opinion of the French Revolution (1897). 




suggestive of monarchy, hereditary aristocracy, ot 
strongly centralized government. Objection was 
made, for example, to any exceptional formality in 
addressing the President, to stamping his likeness 
on the coinage, to any elaborate ceremony at the 
seat of government. Opposition was made to the 
size of the standing army, to the establishment of 
the United States Bank, to the assumption of the 
state debts. Particularly was there denunciation 
of the administration because of its refusal to 
take up the defence of republican France against 
monarchic England. To favor Britain or even to 
remain neutral in the contest, it was said, was really 
equivalent to upholding the British form of govern- 
ment against the free institutions of the Revolution. 

The theory of this movement is represented in 
such works as Thomas Paine’s Rights of Man, 
which was used as an answer to the writings of 
Adams; in Tucker’s Commentaries on Blackstone^ 
(1803); in Taylor’s/«y«z>j^(i8i4); and the various 
writings of Joel Barlow.® But by far the most 

^ H. St. George Tucker, Commentaries on Blackstone. 

^ John Taylor, An Inquiry into the Principles and Policy of 
the Government of the United Stales, A considerable part of this 
discursive work is taken up by a criticism of Adams’s theory of 
aristocracy. By the same author. Construction Construed and the 
Constitution Vindicated (1820); Tyranny Unmasked (1822); 
New Views of ike Constitution (1823). 

* Advice to the Privileged Orders in the Several States of Europe 
(1792); Joel Barlow to his Fellow Citizens in the United States of 
America (1801); and various other letters. See Life and Letters 
of Joel Barlow^ by Charles Burr Todd- 


influential of the leaders in this group was Thomas 
Jefferson, and to a consideration of his doctrines 
we now turn. 

No name is more often or more intimately 
associated with American democracy than that of 
Thomas Jefferson. During his lifetime he was the 
American democrat par excellence ; on his death 
he was politically canonized, and his words are still 
quoted with confidence and received with respect 
in the consideration of almost all political questions. 
Brought into prominence as the author of the 
Declaration of Independence, identified with the 
growth and triumph of the Republican party, in- 
augurated as its first President, framing its policies 
and providing its philosophy, Jefferson was un- 
doubtedly the central figure in the early develop- 
ment of American democracy.^ 

Though regarded as the great advocate of de- 
mocracy, Jefferson bequeathed to posterity no 
systematic treatise on the principles of politics.* 
His Summary View {1774) dind Notes on Virginia 
(1782) are the nearest approach to this,® and they 
can scarcely be considered an approximation. More- 
over, he was not a great orator, and there is no 

^ For the hfe of Jefferson, see H. S. Randall’s work in three 
volumes; also Morse's volume in the American Statesmen Series. 

“ A useful classification of Jefferson’s ideas on a great variety of 
subjects is made by J, P. Foley, in The Jeffersonian Cyclopcedia, 

® See also his Autobiography (to 1790) and The Anas (1791- 



collection of addresses in which his ideas are 
embodied. He was, however, a great correspond- 
ent, and we have a large collection of his letters, 
written to such persons as Madison, John Adams, 
Lafayette, Dupont de Nemours, Taylor, Kercheval, 
Johnston, and others. From this extensive corre- 
spondence, in which topics of political theory 
frequently appear, together with some of his official 
papers, it is possible to reconstruct the theory of 
Jefferson, if not in minute detail, at least in general 

The first important statement of Jefferson’s 
political theory is contained in the Declaration of 
Independence. Here are eloquently expressed the 
now familiar doctrines of human equality, of the 
natural and inalienable rights of man, of the guar- 
anty of these rights as the first cause of govern- 
ment, and of the right and duty of revolution when 
they are subverted. These doctrines, it is perhaps 
needless to say, were not original with the writer 
of the Declaration. They were the common prop- 
erty of his time, were on the lips of every patriot 
orator, and found copious expression in resolutions 
throughout the colonies. It was later charged that 
the substance of the Declaration had been “ hack- 

* References are to Ford’s edition of Jefferson’s writings (ten 
volumes), unless otherwise specified. The Washington edition con- 
tains some material not found in Ford, and vice versa. See also 
" The Jefferson Papers,” in Collections of Massachusetts Historical 
Society, Seventh Series, Vol. I, edited by J. Franklin Jameson. 


neyed in Congress for two years before.” ^ Jeffer- 
son himself was fully conscious that the originality 
of the statements lay in their form, rather than in 
their content, and his own explanation of his work 
is excellent : " Neither aiming at originality of prin- 
ciple or sentiment, nor yet copied from any particu- 
lar or previous writings, it was intended to be an 
expression of the American mind, and to give to 
that expression the proper tone and spirit called 
for by the occasion.”* Jefferson crystallized the 
common sentiment into a very effective form, but 
he could not and did not claim for himself the 
merit of presenting to the world a series of new or 
hitherto undiscovered truths. This is not to say, 
however, that the authorship of the Declaration 
was not a signal distinction ; it merely changes the 
category in which the distinction lay. 

Inquiring more closely into Jefferson’s theory of 
inalienable rights, we find him protesting against 
the idea that we surrender any of our natural rights 
on entering into society. Jefferson argues that 
these rights are not given up, but, on the contrary, 
are rendered more secure.® He holds that the 

1 Works, X, 267. This was alleged by Pickering and Adams, who 
also charged that its essence was contained in Otis’s pamphlet.” 
R. H, Lee maintained that it was copied from Locke. 

* Ibid, X, 343, Cf. X, 268 : " I did not consider it as any part 
of my charge to invent new ideas altogether and to offer no senti* 
ment which had ever been expressed before.” — Letter to Madison, 

^ Ibid, X (1816), 32 ff. Cf. Locke, Tuuo Treatises of Govern- 


State should declare and enforce our rights, but 
should take none of them from us. Reasoning in 
this way, it is possible, he thinks, to mark out the 
proper sphere of state activity. Thus, as no man 
has a natural right to interfere with the rights of 
others, it is the duty of the law to restrain every one 
from such interference. Every man should contrib- 
ute to the necessities of society ; therefore the law 
should see that he does so. No man has a natural 
right to judge in his own cause; therefore the law 
must judge. Thus it appears that one does not 
lose his natural rights under government, but 
obtains a better guaranty of them. 

Government is established, however, by the “ con- 
sent of the governed,” or at least a just government 
is so supported. What, then, is the nature of this 
consent, and how is it to be made effective amid 
constantly changing conditions ? J eff erson was not 
satisfied with a contract made once and for all, like 
that of Hobbes, or with a merely hypothetical con- 
tract or even with a presumption of tacit consent 
from the fact of residence. He looked upon the 
contract as a necessary foundation for legitimate 
government, and he considered that the agreement 
should have historical as well as logical validity. 
The principle of the social contract must be sacredly 
preserved in the life of the people, and Jefferson 
proposed two ways of insuring this end : first, by 
revolution ; second, by periodical renewal of the 


Revolution, Jefferson did not regard with great 
horror, if principle were involved in the process. 
He did not believe in government as something so 
sacred in nature as to be above human criticism. 
He did not “ look at constitutions with sanctimo- 
nious reverence and deem them like the ark of the 
covenant, too sacred to be touched.” * Government 
appeared to him as an institution existing for the 
governed ; and if it failed to serve this purpose, 
then it might be overthrown and another erected 
on its ruins. So far did he go in this direction that 
the beneficent elements in government were at times 
almost lost to view. He declared his dislike of 
energetic government because it is always oppres- 
sive.2 He was on one occasion doubtful whether 
the first state of man, without government, as he 
says, would not be the most desirable, if the society 
were not too large.® He thought that republics 
should not be too severe in their treatment of rebel- 
lions, lest the free spirit of the people be suppressed. 

Rebellion, he argued, is a medicine necessary to 
the health of government, and its use must not 
be denied. It is wholesome, though bitter; or, 
using another figure, it clears the air like a thunder- 
storm.^ Shays’s Rebellion in Massachusetts Jef- 
ferson regarded with great composure, even with 
complaisance. The motives of the rebels were 
good, he thought, though doubtless they were ill 

1 X, 42. IV, 479. 

« Ibid. IV, 362. ‘ Ibid. IV, 362. 


informed on the situation. Better, however, that 
they should take up arms than tamely submit to 
what they deemed oppressive ; for, after all, it is 
not rebellion that destroys a republic, but the dull 
lethargy that creeps upon and paralyzes the public 
spirit — “ God forbid, that we should ever be twenty 
years without such a rebellion.” There have been, 
he continues, thirteen states independent for eleven 
years, and during this time only one rebellion. 
This amounts to one in one hundred and forty -three 
years for each state — by no means an excessive 
number. How is it possible for a country to pre- 
serve its liberties if the rulers are not occasionally 
warned of the existence of a spirit of resistance 
among their subjects } “ What signify,” he asks, 
“ a few lives lost in a century or two ? The tree 
of liberty must be refreshed from time to time with 
the blood of patriots and tyrants.” ^ 

The idea of adherence to the principle of the 
social contract finds a less violent expression in 
Jefferson’s argument for periodical renewals of the 
agreement. Rebellion or revolution serves to keep 
alive the public spirit ; but it acts through irregu- 
lar and illegal channels, and hence is best adapted 
to countries where the government is tyrannically 
inclined. For a free state, however, there are 
other plans that may be followed, without passing 
outside the boundaries of the law. A convention, 
reconsidering the organic law of the land and sub- 
* Works, IV (1789), 467. 


mitting the result of its deliberations to the people, 
really constitutes, he maintains, a renewal of the 
fundamental agreement. In this way the “ consent 
of the governed ” may be again invoked and the 
government reestablished on a just foundation. 
Each generation, such is the argument, has a right 
to establish its own law. “ The earth belongs in 
asufruct to the living; the dead have neither 
powers nor rights over it.” ^ It follows, then, that 
no generation of men can pass any law binding for 
a period longer than the lifetime of that generation, 
because their law-making power ceases with their 
existence. If one generation could bind another, 
the dead and not the living would rule. Since 
conditions change and men change, there must be 
opportunity for corresponding change in political 
institutions, and also for a renewal of the principle 
of government by consent of the governed.* 

Having established this proposition, Jefferson 
proceeded to determine the exact period for which 
a law or a constitution might be considered as an 
expression of the will of the community. By the 
use of certain tables of M. de Buffon, he found 
that in any given society one-half of all those over 
twenty-one years of age will have passed away in 
eighteen years and eight months.® Therefore, he 

^md.y, 1 16. 

’ Cf. the theory of Thomas Paine as discussed in PolUicai 
Stience Quarterly, XIV, 389 (September, 1899). 

» Works, V, 118-119. 


reasoned, no society can make any constitution, 
law, or contract of binding force for any period 
longer than nineteen years. Hence, if the society 
is to adhere to the principles upon which just gov- 
ernment is founded, there should be a revision 
of the fundamental law, or at least an opportunity 
for revision, every nineteen years. This plan was 
defended by Jefferson as a reasonable and practi- 
cable method of maintaining a free government in 
its integrity. “At first blush,” said he, “it may 
be rallied as a theoretical speculation, but examina- 
tion will prove it to be solid and salutary.” * He 
urged that the first revenue law enacted by Con- 
gress should contain in its preamble a statement 
of this theory, and that the period for the granting 
of patents be limited to nineteen years ; and he 
manifested much concern at Virginia’s failure to 
adhere to the policy of periodical constitutional 

Such, then, were the two methods by which the 
consent of the governed might be made the con- 
stant basis of government — by periodical renewal 
of the contract, or, if this were impossible, by 
rebellion or revolution. Neither of these methods, 
however, was novel in political speculation when 
Jefferson propounded them. The idea of a “fre- 

1 Works, V, 123. See VI (Washington edition), 136, 197; 
VII, 15, 359. Madison, in reply to Jefferson (in Madison’s Writings, 
I, urges the debt owed by the living to the dead and 

advocates the doctrine of "tacit consent ’’ 



quent recurrence to fundamental principles ” was 
common to the time and was often expressed in 
the Revolutionary state constitutions ; ^ while the 
plan for a revision of the Constitution was not so 
radical as the provision actually made in Vermont 
and Pennsylvania for a council of censors and a 
septennial constitutional revision.^ 

Having considered Jefferson’s theory as to the 
basis of the government, it is now in order to exam- 
ine his position as to the various classes of govern- 
ment.® What, then, was his opinion of monarchy ? 
The government of a king Jefferson regarded, at 
least in the earlier part of his life, with utter abhor- 
rence. Though not the equal of Paine in the vigor 
of his invective against kings, he was but little 
inferior. He declared that “no race of kings has 
ever presented above one man of common sense 
in twenty generations.’’^ Again: “There is not 
a crowned head in Europe whose talents or merit 
would entitle him to be elected a vestryman by the 
people of any parish in America.” ® Writing in 
1810, he stated that, to his personal knowledge. 

' Massachusetts (1780), Art. 18; Pennsylvania (1776), Art. 14; 
New Hampshire, Art. 38 ; North Carolina, Art. 21 ; Vermont, 
Art. 16. 

* See Jameson, Constitutional Conventions (4th ed.), sec. 544. 

® Works, IV, 362 Jefferson classified societies into three 
groups: (l) those destitute of government; (2) those in whose 
government the will of everyone has a just influence; (3) those 
whose governments rest on force. Letter to Madison (1787). 

■* Bid. IV, 426. 5 Bid. V, 8. 


Louis XVI was a fool ; and in the same category 
were included the kings of Spain, Naples, Sardinia, 
and Denmark, and the queen of Portugal ; while 
the successor to Frederick the Great he charac- 
terized as a mere hog.^ Moreover, he thought 
that if there were any' efficient hereditary monar- 
chies, their power would decay in the course of a 
few generations. Jefferson’s favorite and perhaps 
most effective form of attack upon his opponents 
was to arouse the suspicion that they were at heart 
monarchists, longing for the restoration of royalty.* 
In later years, however, after the failure of the 
European revolutions to establish democracy, he 
was inclined to concede that under certain condi- 
tions a monarchy might really be the most desirable 
form of government.® 

The next point of inquiry is Jefferson’s opinion 
of aristocracy. Judging from his famous utter- 
ance, “ AH men are created equal,” he is generally 
regarded as the great champion of human equality. 
Against this is sometimes urged the fact that the 
ownership of slaves is hardly in keeping with ideas 
of universal equality. It should not be forgotten, 
however, that Jefferson was really opposed to the 
institution of negro slavery and more than once 

' JVorks, V (Washington), 515. 

’ In 1824 he said that he had charged the Federalists with ad- 
herence to the forms, that is, the ceremonies, of the British gov- 
ernment, not with a desire to introduce the British form, i.t, the 
monarchy. Works, X, 309-310. 

• See letter to Lafayette (1823) in Works, X, 279 ft. 



went on record against it, as in his proposition for 
a Virginia constitution^ (1776) and in the report 
on the “Government for the Western Territory” 
(1784).^ Later in life he was forced to abandon 
his early hope that slavery would soon cease to 
flourish in America, yet he still believed in the 
ultimate extinction of slavery and declared (1814) 
that “ the love of justice and the love of country 
plead equally for the cause of these people.” ® He 
said that the hour of emancipation was advancing 
with the march of time and urged continual effort, 
“ softly but steadily.” 

Aside from this point, however, it is easy to show 
that Jefferson was not at all a believer in the ab- 
solute equality of men.^ In this connection it is 
interesting to examine his correspondence with 
John Adams upon this very question of aristoc- 
racy. Adams denounces in set terms the theory 
of the equality of all men, declares that society is 
divided into two classes, “ gentlemen ” and “ simple- 
men,” and demands the legal recognition of this 
difference in ability.® Jefferson does not deny the 

^ Works^ II, 26. 

2 Ibid, III, 429. In this report occurs the provision : After 
the year 1800 of the Christian aera, there shall be neither slavery 
nor involuntary servitude in any of the said states otherwise than 
in punishment of crimes whereof the party shall have been con- 
victed to have been personally guilty.” ® Ibid, IX, 477 ff. 

^ With the Declaration of Independence should be read Jeffer- 
son’s proposed constitution for Virginia (1776), II, 7 ff. See alM 
the propositions of 1783, 1794^ and 1816. ^ See anit. 


existence of an aristocracy among men, but dis- 
tinguishes between the natural aristocracy and the 
artificial aristocracy. One is based upon virtue 
and talent, the other upon wealth and birth. The 
“ natural aristocracy ” appears to him as the “ most 
precious gift of nature,” and highly useful for the 
purpose of instructing and governing society. He 
even goes so far as to say, “ That form of govern- 
ment is the best which provides the most effec- 
tively for a pure selection of these natural aristoi 
into the offices of government.” ^ The “ artificial 
aristocracy,” based on wealth and birth, is mischiev- 
ous, even dangerous, and should not receive legal 
recognition. In reply to Adams’s proposition that 
the aristocracy should be represented in one legis- 
lative chamber and the people in the other,^ he 
urges that the separation of the pseudo-aristocracy 
from the genuine should be left to the people them- 
selves. Some mistakes will doubtless be made, 
but the really good and wise will generally be 
selected.® Jefferson, it may be said, believed in 
an aristocracy, but only in the sense that the best 
fitted for governing should rule, and that the selec- 
tion of the aristoi should be made by popular elec- 
tion rather than on a basis of birth or wealth. He 
wanted aristocratic rulers democratically chosen. 

^ Works^ IX, 425, 

* Works of John Adams, IV, 379. 

* Works^ IX, 426. See Jefferson's explanation of the difference 
in opinion between Adams and himself. 


But in this connection it must be remembered that 
the democracy of his day was not the democracy 
of ours. As late as 1824, Jefferson estimated that 
a majority of the freemen in Virginia were excluded 
from the franchise, and there were many inhabit- 
ants who were not even freemen.^ 

Having reviewed his ideas on monarchy and 
aristocracy, it remains to consider Jefferson’s doc- 
trine of democracy. What was the theory of “Jef- 
fersonian democracy ’’ ? The doctrines of natural 
rights and the “ consent of the governed ’’ have 
already been examined; but, more specifically, 
what was his idea as to the characteristic features 
of a democratic government } This is not easy to 
determine ; for, in the first place, his notions were 
never systematically and not always clearly ex- 
pressed ; and, in the second place, there are con- 
tradictions between his political theory and his 
practical politics. The theory of Jefferson, the 
political scientist, and the practice of Jefferson, 
the man of affairs, are not always free from incon- 
sistency. An effort will be made here, however, 
to show as clearly as possible from the scattered 
sources at command what Jefferson’s theory of 
democracy really was. 

Jefferson defines a republic as “a government 
by the [its] citizens in mass, acting directly and 
personally, according to rules established by the 

1 On Aristocracy, see Taylor, Inquiry, passim ; Tucker’s 
Btackstone, Appendix to Vol. I, 37 ff. 


majority.” ^ Governments are republican in pro- 
portion to the degree of direct action on the part 
of the citizens,** and there are of course many vary- 
ing degrees. This is, however, only a very general 
statement and lacks definiteness of outline. One of 
the best supplementary explanations is that found 
in Jefferson's first inaugural address.® Here are 
laid down the main principles which should obtain 
within a democracy. They include, among others, 
the following propositions: equal and exact jus- 
tice; jealous care of the right of election by the 
people ; the rule of the majority ; * the preserva- 
tion of the guaranties of civil liberty, such as free- 
dom of religion, freedom of the press, the habeas 
corpus and jury trial; the subordination of the 
military to the civil authority ; and economical 
administration. In these phrases are summed up 
his democratic program, and under his type of 
government they would all be found in operation. 

Further evidence as to Jefferson’s notion of 

1 Letter to Taylor, in Works, X, 28. See also letters to Dupont 
de Nemours X, 22 ff.; to Judge Johnson, X, 226; and to Gerry, 
VII, 327. 

’ “Action by the citizens in person, in affairs within their reach 
and competence; in all others by representatives chosen immedi- 
ately and removable by themselves, constitutes the essence of a 
republic.” — Letter to Dupont de Nemours, X, 24. 

» Works, VIII, I ff. • 

* R>id. VIII, 4. “ Absolute acquiescence in the rule of the 

majority, the vital principle of republics from which there is no 
appeal but to force.” 


democracy is given by examination of what he 
once termed the “ two hooks ” upon which repub- 
lican government depends.* These were an edu- 
cational system and a scheme of local government. 
Keenly appreciating the necessity of popular in- 
telligence as a basis for successful popular govern- 
ment, Jefferson was a constant advocate of all 
measures for the diffusion of knowledge among 
the masses. If government rests upon public 
opinion, he said, then our first and foremost care 
is to see that this opinion is kept right.^ Opinion 
that is unenlightened and unsound would be the 
death of free government. He once said that, if 
forced to choose between a government without 
newspapers and newspapers without a government, 
he would not hesitate to choose the latter alterna- 
tive, assuming that every man received the papers 
and were capable of understanding them. Jeffer- 
son exerted himself in behalf of educational insti- 
tutions in his own state, and to his earnest efforts 
was largely due the establishment of the Univer- 
sity of Virginia.® 

The second “ hook ” was local government. 
Referring to his experience at the time of the 
Embargo Act, Jefferson said : “ I felt the founda- 
tions of the government shaken under my feet by 
the New England townships."* He recommended 

» Ibid. IX, 453. Ibid. IV, 360, 

• See Randall’s Jefferson^ III, 461. 

* Works^ VI (Washington edition), 544. 


for Virginia a system of local government mod- 
elled quite closely after the New England type, to 
take the place of the “large and lubberly divisions 
into counties.” “ Wards ” were to take charge of 
the elementary schools, to care for the poor and 
the roads, and to have a system of justices, con- 
stables, and police.! But the “ ward ” was merely 
one step in the scheme of governmental gradation 
which Jefferson had in mind. He conceived that 
liberty should be secured, not only by a tripartite 
division of governmental powers, but '’also by a 
further distribution among a series of organizations 
extending from ward to nation. First should come 
the elementary republics or wards, then the county 
republics, then the states, and finally the nation. 
Governmental powers should be delegated “ by a 
synthetical process to higher and higher orders of 
functionaries, so as to trust fewer and fewer pow- 
ers in proportion as the trustees become more and 
more oligarchical.” * Local government would thus 
be made a part of the complicated “check and 
balance ” system in the intricacies of which des- 
potism would be entangled and rendered powerless. 

Another feature in the Jeffersonian program 
should perhaps receive mention at this point ; 
namely, the plea for the subordination of the mili- 
tary to the civil authority. He argued against a 
large standing army as a likely instrument of 

* Works, VII (Washington edition), 357; also V, 524. 

^ Idid. VI (Washington edition), 543. 


oppression. Absolute governments must depend 
upon force, but a free state, he held, should place 
its confidence in the good-will of its citizens. So 
far as military power is necessary for purposes of 
defence, the need should be supplied by a well-dis- 
ciplined militia. A standing army was associated 
with monarchical power, and it was, therefore, a 
part of the republican policy to reduce the army and 
the navy to as low a footing as possible. Under 
Jefferson this was the line of conduct followed by 
the administration. In this way an alleged monar- 
chical tendency was checked and at the same time 
the expenses of government were reduced, although 
the Embargo Act involved an exercise of po,wer 
like that of a “ consolidated government.” The sup- 
pression of the military power was undoubtedly one 
of the features in the Republican plan for govern- 
mental regeneration — indeed, it has been urged that 
this was the real significance of the transition in 
i8oi but Jefferson did not present any very elabo- 
rate arguments upon the question, and it did not oc- 
cupy a very prominent place in his political theory. 

Thus far this inquiry has extended into Jeffer- 
son’s definition of a republic and an examination 
of various features included in the program of 
such a government. Yet all these considerations 
fail to show what was the real essence of Jeffer- 
sonian democracy. They reveal in part his policy, 
but his policy was never complete either in theory 
* Ford, The Rise and Growth of American Politics, 131. 

1 62 


or in actual practice. That which gave life and 
color to all these measures for democratic reform 
was the article in the Jeffersonian political creed 
which must now be considered. The distinctive 
and characteristic feature of his doctrine is most 
clearly expressed in his correspondence with John 
Adams ; here may be seen the real difference that 
divided these two great leaders, one the advocate 
of the “well-born,” the other the apostle of democ- 
racy — their opinions characteristic of two great 
parties and of two great schools of political thought. 
This difference has already been indicated, but 
may here be better explained and more appropri- 
ately emphasized. 

It has been shown that Adams was anxious for 
a balanced government of the most complex na- 
ture, including, as one of its elements, a legal 
recognition of the aristocracy, and that he ap- 
peared to doubt and distrust the capacity of the 
people for any high degree of self-government. 

Against such a theory, Jefferson maintained that 
men are naturally divided into two classes: (i)those 
who fear and distrust the people ; (2) those who 
identify themselves with the people, have confi- 
dence in them, consider them as the most honest 
and safe, although not always the most wise, de- 
positories of public interests.^ 

' Works, VII (Washington edition), 376. Cf. Madison, Dialogue 
between a Republican and an anti- Republican (1792), in Works, 
IV, 483. 


In the opinion of the first class, the masses 
must be held in check by physical and moral 
force, and can be restrained in no other way ; 
men are essentially incapable of ruling themselves, 
and must be governed by authorities independent 
of their will and not subject to their judgment. 
But the second class, on the other hand, argues 
Jefferson, place their trust in popular capacity for 
self-government, maintaining that man is a rational 
animal, possessing a natural and innate sense of 
justice, and that for the preservation of peace and 
order he does not require restraint from above or 
outside, but is competent to choose his own rulers 
and hold them dependent on his will. The same 
idea as to the two classes of opinions is expressed 
in a letter to Dupont de Nemours, in which Jeffer- 
son says : “We both love the people, but you love 
them as infants whom you are afraid to trust with- 
out nurses, and I as adults whom I freely leave to 
self-government.” ^ 

The essence, then, of Jefferson’s democracy was 
confidence in the self-governing capacity of the 
great mass of the people — a belief in the ability 
of the average man or of average men to select 
rulers who will conduct the administration in gen- 
eral accord with the interests of the society. The 
divergence of opinion just here made Adams an 
aristocrat and Jefferson a democrat — not that 

1 Works, X, 23; one of the best of the statements of democratic 


Adams had no confidence, or that Jefferson had 
all confidence, in the people, but the degrees of 
confidence differed widely. We might say that 
one looked with suspicion on the people first of 
all, the other distrusted first the government and 
after that the people. Both favored a balanced 
government ; but Adams desired primarily to pre- 
vent violent action on the part of the people, 
whereas Jefferson’s first aim was to prevent op- 
pression by the government; one reasoned that 
the people should be watched, the other that the 
government should be kept in constant view.^ 
Confidence in the people was, therefore, the dis- 
tinguishing characteristic in the theory of Jeffer- 
sonian democracy. In practice, however, the early 
“democracy” was aristocratic in the nature of its 
rule and continued to be so until the time of Jack- 
son, when the democratic theory found a more 
complete expression in political institutions. 

It must further be noted that Jefferson’s theory 
of democracy was by no means so doctrinaire as 
is often supposed. He did not argue that democ- 
racy was equally adapted to all times, places, 
conditions, and peoples, as some have assumed. 
Confident of the ultimate triumph of democratic 
principles, he was not eager for their immediate 

* I.etter to Dupont de Nemours, in Works, X, 22. Cf. also VIII, 
127 : “ What is practicable must often control pure theory, and the 
habits of the governed determine in great degree what is practi- 


and universal application. Nothing could be 
clearer than his statement that “the excellence 
of every government is its adaptation to the state 
of those who are governed by it.” The Sage of 
Monticello was not so blind a devotee of democ- 
racy as to believe that civil and political liberty 
need no firmer basis than a paper constitution. 
To Lafayette he said that liberty becomes, “with 
an unprepared people, a tyranny still of the many, 
the few, or the one.”* Again, he expressed doubt 
“ whether the state of society in Kurope can bear 
a republican form of government,” and therefore 
advised “ a hereditary chief strictly limited.” 2 The 
cause for the failure of the continental revolutions 
is discovered in the fact that “the mob of the 
cities, the instrument used for their accomplish- 
ment, debased by ignorance, poverty, and vice, 
could not be restrained to rational action.” ^ Dis- 
cussing American conditions, he comes to the con- 
clusion that the Spanish-American states are not 
ready for republican institutions, since their expe- 
rience “ has disqualified them for the maintenance 
or even knowledge of their rights.” * Louisiana 

* Works, IX (1815), 505. 

^ Ibid. X (1823), 280, “A hereditary chief strictly limited, the 
right of war vested in the legislative body, a rigid economy of 
the public contributions and absolute interdiction of all useless 
expenses, will go far toward keeping the government honest and 

® Ibid. VI (Washington edition), 227. 

‘ Ibid. IX (1811), 322; also IX, 430, 435. 



is not ready (1803) for the exercise of complete 
political liberty and should obtain it only “ in propor- 
tion as we find the people there riper for receiving 
the first principles of freedom.”^ Jefferson points 
out that in America economic conditions favor 
democracy.^ Here every one owns property or 
is at least so well situated as to be interested in 
the maintenance of law and order. It seems, then, 
that "such men may safely and advantageously 
reserve to themselves a wholesome control over 
their public affairs and a degree of freedom, which, 
in the hands of the canaille of the cities of Europe, 
would be instantly perverted to the demolition and 
destruction of everything public and private.” Else- 
where he remarks that the Americans will continue 
to be virtuous and retain their democratic form of 
government as long as they remain an agricultural 
people ; but “ when they get piled upon one another 
in large cities, as in Europe, they will become cor- 
rupt as in Europe.”® In one instance he even 
goes so far as to say that the people here “would 
go on as well under an absolute monarch while 
our present character remains of order, industry, 
and love of peace.” ^ 

Jefferson believed fully in democracy and was 
confident of the ultimate triumph of the system, 
but he was too keen and careful an observer to 

1 Works, VIII, 275. Cf. Paine, to the same effect. 

=> Ibid. IX, 428; IV, 479. 

« Ibid. IV, 479. * Ibid. X, 31. 


think that all people were capable of adopting the 
American system in his day. This may not have 
been in harmony with his ideas on natural rights ; 
but as he himself said, theory and practice are not 
always in accord, and “ the habits of the governed 
determine in great degree what is practicable.” 

Some interesting light is thrown on Jefferson’s 
philosophy by noticing upon what systematic politi- 
cal theorists he was most dependent, and which of 
them, in his opinion, best expressed the true prin- 
ciples of political science. From the classical 
writings, Jefferson apparently derived little in- 
spiration. Aristotle he knew,^ but thought of little 
value ; and Plato’s writings he considered as so 
much worthless " jargon.” * The chief source from 
which Jefferson drew his inspiration is commonly 
supposed to have been the philosophers of the 
eighteenth-century democracy in France. It is 
often said that his head was turned by French 
ideas, that he was a “ Rousseauist,” and that the 
speculative Jefferson was really a Frenchman. 
The extent of the French influence upon Jeffer- 
son was, however, far less than is generally sup- 
posed. Montesquieu and Rousseau, who might 
be presumed to have had a large share in deter- 
mining his views, seem to have affected him very 
little. Montesquieu he held in no high esteem. 
“ I am glad,” he says, “to hear of anything which 

1 /ill. VII (Washington edition), 31. 

» litW. IX, 462. 



reduces that author to his just level, as his predi- 
lection for monarchy, and the English monarchy 
in particular, has done mischief everywhere, and 
here also to a certain degree.” ^ Rousseau is not 
discussed or recommended for reading by Jeffer- 
son ; nor do the latter’s theories show as much re- 
semblance to Rousseau as to other French writers. 
Jefferson recommended Condorcet’s Esquisse dun 
Tableau Historique des Progrhs de 1' Esprit Humain, 
and probably obtained from this source his ideas 
on human “ improvability.” The only French 
work cited with enthusiasm is that by Destutt 
de Tracy, Commentaire sur V Esprit des Lois, of 
which Jefferson had a translation made into Eng- 
lish (i8ii), so that it might circulate freely in this 
country. He referred to Tracy’s work as the 
“ most precious gift the present age has received,” * 
“ giving the most correct analysis of the principles 
of government which has yet been offered ; ” al- 
though he did not agree with all the theories 
contained in it, notably the doctrine of a plural 
executive.® But this work did not appear until 
long after the early and more radical period in 
Jefferson’s life was over. The Declaration of In- 
dependence antedated it by thirty-five years, and 
Tracy himself had been influenced in no small 
degree by American publicists, as appears from 

1 Works, V (Washington edition), 535. Cf, VIII, 24. 

* Ibid. IX, 305, 500. 

* Letter to Tracy, ibid. IX, 305. 


his eulogy of our federal system of government. 
It is hence impossible to impute the paternity of 
Jefferson’s ideas to this work.^ 

Indeed, it is unnecessary to go outside of the 
English theory of politics to find ample precedent 
upon which Jefferson might draw. In the English 
writers, particularly of the seventeenth century, are 
found revolutionary and democratic principles of 
the most decided character,^ anticipating not only 
Jefferson, but in large measure Rousseau himself. 
As I have indicated above, when Jefferson’s rivals 
wished to detract from his fame as author of the 
Declaration, they could point to the substance of 
this instrument in the words of Locke : the ideas 
were the common property of the time — not bor- 
rowed from Rousseau or Montesquieu. Jefferson’s 
theory followed a line of thought already marked 
out during the English revolution by Milton, Syd- 
ney, and Locke, and taken up by colonial thinkers 
before Rousseau had begun to write.® 

When called upon for advice as to the best 
political literature, Jefferson recommended Locke 
and Sydney of the earlier writers, and of the later : 
Priestley’s Essay on the First Principles of Govern- 
ment ; 'Bmgh’s Political Disquisitions ; Chipman’s 
Sketches of the Principles of Government ; The Fed- 

^ The commentary appeared first in America, and eleven years 
afterward in France (1822). 

2 See G. P. Gooch, English Democratic Ideas in the Seventeenth 
Century. '** See ante^ Chap. T. 



eralist, which he once commended as “the best 
commentary on the principles of government which 
was ever written,” and Tracy’s Commentaries. 
Jefferson was also an intimate friend of Thomas 
Paine, and there are many common points in their 
theories. In a letter to Paine he assured him that 
the Americans are “firm and unanimous in their 
principles of republicanism, and there is no better 
proof of it than that they love what you write, and 
read it with delight. The printers season every 
newspaper with extracts from your last, just as 
they did before from your first part of the Rights 
of Man." 1 

On the whole, it appears that, so far as the revo- 
lutionary character of his theory was concerned, 
Jefferson was little in advance, logically, of his 
predecessors. The difference between Jefferson 
and Locke, for example, was not so much in fun- 
damental principles as in the development of and 
deductions from these principles. Jefferson and 
Locke were both democratic and revolutionary in 
theory, but Jefferson went farther than Locke in 
his advocacy of democratization of the government 
Between the Fundamental Constitutioris of Locke 
and the Jeffersonian program there was a wide 
difference. Locke’s attitude toward the organi- 
zation of the government was wholly aristocratic, 
while that of Jefferson was essentially democratic. 
They agreed in their destructive, but not in their 

^ Works^ VI, 87. 


constructive, program. Both were opposed to 
absolutism; but Locke feared, while Jefferson fa- 
vored, the erection of a “numerous democracy.”^ 

In conclusion, what should be said of Jefferson’s 
rank as a political theorist.^ The important service 
rendered by the Sage of Monticello was not the 
scientific elucidation of theory. The doctrines he 
advocated had all been discussed and developed 
long before his time, and he did not improve much 
on the classic analysis of Aristotle, the reasoning 
of Locke, or the brilliant logic of Rousseau. He 
cannot be classed as one of the great political 
thinkers. He did not inquire deeply into the na- 
ture of the state, its forms of organization, or any 
of the numerous problems arising out of the com- 
plex relations of political association. He did not 
write systematically at all, and what he did write 
was notable rather because of its rhetoric than 
because of its scientific depth or clearness. Tested 
by the canons of the schools, Jefferson falls far 
short of the stature of a great political philosopher. 

What, then, shall be said of this personality so 
preeminent in the annals of American democracy 
What was the source of his power, and what the 
significance of his career ? One great cause of his 
power was the unusual sagacity and astuteness 
that made him a great party leader. With a 

' See, on the source of the ideas of colonial theorists, Lewis 
Rosenthal, “ Rousseau in Philadelphia,” Magazine of American 
History, XII, 46. 


“ machine ” that was ill organized, if organized at 
all, and with little patronage, Jefferson’s political 
genius guided the Republicans on to the destruc- 
tion of their rivals. Another cause was his sin- 
gular gift for vivid statement of popular ideas. 
He crystallized the common democratic sentiment, 
giving it form and power. He was great in his 
ability to interpret and express popular feeling. 
And finally, he had great confidence in the people. 
He believed in their capacity for self-government, 
had confidence in the soundness of their judgment, 
and was hopeful of the future of democratic insti- 
tutions. In spite of the many inconsistencies in 
his conduct, JeflEerson stands out as the great apos- 
tle of the democratic faith in his day. He appeared 
as the advocate of the “people” against the claims 
of “monarchists” and “aristocrats.” He not only 
defended the people on theoretical grounds, but 
he was identified with a fairly definite program of 
democratic reform, a part of which he was success- 
ful in carrying out, and much of which was real- 
ized later under the Jacksonian democracy. He 
stood for the extension of the suffrage, periodical 
revision of the Constitution, religious liberty, sub- 
ordination of military to civil authority, the main- 
tenance of local governments as a barrier against 
excessive centralization, and for a certain demo- 
cratic simplicity in place of the elaborate cere- 
mony of kings and courts. This was the framework 
of his political system, while the life and spirit of 


it was faith in the self-governing capacity of the 

What is said of Jefferson may be taken as typi- 
cal of the school with which his name is connected. 
He organized the party, furnished its policies and 
its principles, and for eight years offered a prac- 
tical illustration of the type of thought for which 
he stood. When the political theory of Jefferson 
is stated, that of the Jeffersonian democracy has 
been outlined. 

In conclusion on the theory of this epoch, it 
may be said to have begun with a reaction 
against democracy and to have closed with the tri- 
umph of the popular doctrines. The great work 
of the reactionary party was the adoption of the 
Constitution and the establishment of the federal 
government on a firm basis. Their chief concern 
was with the maintenance of law and order, and 
they were interested only secondarily in the guar- 
anty of human rights. This was the secret of 
their success and the cause of their failure as well. 
In the accomplishment of their task they necessa- 
rily antagonized some of the democratic doctrines 
of their time ; and certain of the leaders, such as 
Adams and Hamilton, developed and expressed 
decidedly aristocratic ideas. Notwithstanding the 
explanations made at a later date, it is evident that 
Adams and his school leaned away from the peo- 
ple; or perhaps it would be more accurate and 



just to say that they favored strong and efficient 
government, whether popular or not. If they must 
choose between strong government and popular 
government, they would stand for an adequate and 
effective political system. When once the central 
government was fairly established, the opposition, 
aided by the movement in France, rapidly gained 
strength, and soon was able to obtain control of 
the administration. Their return marked the re- 
action from government to liberty again. Although 
guilty of much misrepresentation of their oppo- 
nents’ position, and of many inconsistencies in their 
conduct, the Jeffersonian Democrats had greater 
confidence in the masses, and were ready to do 
more for popular government than was the conser- 
vative school.^ They looked forward to a contin- 
ued process of democratic development; the other 
school looked backward toward the long-tried re- 
gime of England, half expecting a return to an 
order like that of earlier days, when the demo- 
cratic impulse had spent its force. 

Notwithstanding the democratic character of 
the Jeffersonian theory, the program involved 
in this was by no means carried out. Even un- 

* It should not be forgotten that in 1787 Jefferson himself enthu- 
siastically endorsed Adams’s Defence, “ I have read your book 
with infinite satisfaction and improvement," he said. “ It will do 
great good in America. Its learning and its good sense will, I 
hope, make it an institute for our politicians, old as well as 
young.” — Letter to Adams, 1787. Works (Washington edition), 
11, 1 28. 


der the democratic regime, there still remained a 
strictly limited electorate, property qualifications, 
long terms of office, and little participation of the 
people in the election of their officers. The gov- 
ernment was still in the hands of the freeholders 
and the gentry. The theory of rhe Jeffersonians 
was in many respects an advance upon that of 
the government party, but its practice was still in 
many ways aristocratic. The development of de- 
mocracy was begun by the Jeffersonian democracy, 
but its full realization was left for another time 
and another party. 



The radical movement which was destined to 
break down the power of the landed aristocracy, 
level the old barriers of exclusiveness, and open 
the way for government of a more popular char- 
acter, took the form of Jacksonian Democracy. 
Its leaders made few contributions to democratic 
political theory, but they broadened the applica- 
tion of principles already familiar. By expanding 
the electorate, a revolution was made in the basis 
of the democracy, and radical changes in the 
superstructure were equally conspicuous. To the 
more important features in this movement, atten- 
tion will now be directed.^ 

Two great forces were back of the Jacksonian 
democracy. These were, in the first place, the 
frontier conditions and ideas in the West and 
South ; and, in the second place, the growth of 

^ On this period, see J. B, McMaster, United States^ IV, V; 
S. N. Thorpe, Constiiuiionai History of the American People; 
H. J. Ford, Rise and Growth of American Politics; F. A. Qeve- 
Land, The Growth of Democracy in the United States; James 
Schouler, Constitutional Studies, 




cities ax\d an industrial class. By 1830 nine new 
rtates had been added to the original thirteen, 
and by 1850 there had been sixteen admitted, 
of which only two, Maine and Vermont, were 
not on the Western frontier. In these new states 
the conditions, economic and social, were highly 
favorable to the development of the democratic 
spirit. Frontier life tended to produce self-reliance, 
independence, and individuality. It developed a 
sense bf equality on the part of the members of 
the community. There was no great wealth, no 
highly polished society, no leisure class, and no 
historic tradition ; the conditions were accordingly 
unfavorable to aristocratic theory or practice. To 
the hardy pioneers, the idea of a jure divino king, 
an hereditary nobility, or a specially privileged 
class was ridiculous in the extreme; while reli- 
gious or property qualifications, permanent or long 
tenure of office, and similar restrictions were alto- 
gether unacceptable. They firmly believed in the 
sovereignty of the people, and, furthermore, in 
the necessity of giving to the mass of the popu- 
lation, as far as possible, the direction of public 
affairs. Anything in the shape of special privi- 
lege or class exclusiveness became at once an ob- 
ject of suspicion and distrust; but confidence in 
the people was always met with hearty applause, 
and was the surest way to popular approval. 

A second cause was the increase of the city 
population, and the development of other than 



agricultural pursuits. By reason of this develop- 
ment there came into existence a population and 
a set of interests different from those of the free- 
holders’ aristocracy. They demanded the right to 
share in the active exercise of political power, 
exerted pressure in this direction, and helped to 
bring about the same state of affairs in the East 
that was being realized in the Western and South- 
ern states.^ 

This democratic tendency found expression in 
national politics through the election to the Presi- 
dency of Andrew Jackson. In his personality the 
new leader embodied the characteristics of the new 
democracy. His defeat of John Quincy Adams, the 
skilled and accomplished statesman, marked the ad- 
vent of another type of chief executive and the 
end of a long line of the old school Presidents. 
To many grave thinkers, the election of Jackson 
seemed the triumph of “KingMob,” and portended 
the ascendency of the worst elements of the peo- 
ple, the rule of an ignorant and incapable democ- 
racy. They thought that republican institutions 
were threatened with the very gravest danger, and 
would not have been surprised to see them wholly 

The importance of the new departure was soon 
felt in the national government. The President 
regarded himself as the representative of the peo- 

^ See on this point the debates in the Massachusetts Convention 
of 1820, and the New York Convention of 1821. 


pie, and asserted the rights of the executive against 
the legislature and the judiciary as they had never 
been asserted before. In the days when state consti- 
tutions had first beenformed.overwhelmingpredomi- 
nance had been given to the legislative department ; 
and in the national government also, Congress had 
occupied the most conspicuous place up to this time. 
Congressmen had nominated candidates for the 
Presidency ; had already directly chosen two Presi- 
dents; their law-making power had seldom met with 
executive check; they had occupied the foremost 
place in the direction of the affairs of the nation. 
In the days of Jackson, the rule of “King Caucus” 
was overthrown in favor of the less aristocratic 
nominating convention. The long dormant veto 
power was brought out and used in a way that had 
never been thought of in the old regime. The 
constitutional strength of the executive was for 
the first time revealed, and the legislature met its 
first decisive check. 

Fear of the executive was soon aroused, and the 
most painful anticipations of presidential tyranny 
were expressed. The Whig party was organ- 
ized in opposition to what its leaders considered 
the abuse of the executive prerogative. Clay, 
Calhoun, and Webster, the ablest intellects of the 
time, struggled hard in defence of Congress, de- 
nouncing the action of the President in the most 
unsparing terms. Webster said ; " The contest 
for ages has been to rescue liberty from the grasp 


of executive power. ... To this end, all that 
could be gained from the imprudence, snatched 
from the weakness, or wrung from the necessities 
of crowned heads, has been carefully gathered up, 
secured and hoarded, as the rich treasures, the 
very jewels of liberty.” ^ The executive, he urged, 
has always been regarded “ as a lion which must 
be caged.” The executive power is not the de- 
fender of liberty ; but “our very security depends 
upon our watchfulness of it.” The President, 
he denounced as “a Briareus (who) sits in the 
centre of our system, and with his hundred 
hands touches everything, moves everything, con- 
trols everything.” Clay was equally vigorous in 
his attacks on the executive. The power of the 
President, he said, “ is felt from one extremity 
to the other of this vast republic. By means of 
principles which he has introduced and innova- 
tions which he has made in our institutions, alas ! 
but too much countenanced by Congress and a 
confiding people, he exercises uncontrolled the 
power of the State. In one hand he holds the 
purse, and in the other brandishes the sword of 
the country. Myriads of dependants and parti- 
sans, scattered over the land, are ever ready to 
sing hosannas to him, and to laud to the skies 
whatever he does. He has swept over the gov- 
ernment during the last eight years like a tropical 
tornado. Every department exhibits traces of the 

I Congressional Debates, Vol. X, Ft. 11 , p. l68i (1834). 


ravages of the storm.” * To the leaders of the 
Whigs, indeed, it seemed that, as in the seven- 
teenth century in England, the people were threat- 
ened by the power of the executive, and should 
find their natural ally in the legislature. This was 
clearly expressed by Calhoun when he said, that 
he considered Congress “the great central point 
where all power must receive its sanction and 
direction ; ” and that the large amount of discre- 
tionary authority which must under every govern- 
ment be lodged somewhere, should be placed in 
the hands of the legislature. Still more radically 
this theory was stated at times. For example, 
it was said on the floor of the Senate : “ The 
executive power which represents the common 
force of society is, in every just theory, and in the 
nature of things, inferior to the legislative power, 
which is the representative of the common intelli- 
gence and the common will, and that, too, pre- 
cisely in the degree to which brute force is inferior 
to reason.”^ The essence of the Whig doctrine 
was that the legislature is naturally the closest 
representative of the people, and that the execu- 
tive should be an object of constant suspicion and 
distrust. ® 

> Itid. XIII, Pt. I, p. 438 (1837). Cf. X, Pt. I, p. 1314, on the 
Whigs as opponents of executive prerogative. 

* IHd. Vol. XIII, Pt. I, 469- 

* A very rhetorical statement of the anti-prerogative men was 
that made by Mr. Sprague in the Senate, January 29, 1834. “ I may 
be deemed an alarmist. There is cause for alarm. When one 



The legislature, however, had reached the climax 
of its power in the days of the Revolution, and 
there was now a pronounced reaction against that 
department. This was one of the most significant 
points in Andrew Jackson’s administration. He 
announced himself as the representative of the 
people in as true a sense as the Congress, and de- 
clared his independence of, or better, his right to 
an equal rank with, the other two departments. 
The executive, since the time of the Revolution 
shorn of power, again found strength to assert him- 
self in the affairs of state. It may fairly be said 
that one of the first fruits of the new democratic 
regime was a decisive victory for the executive, 
representing the people, over the congressional 
aristocracy inherited from the Revolution. It was 
the old story over again, of a strong executive sup- 
ported by the masses of the people against a well- 
intrenched aristocracy ; and the victory rested with 
the executive. Jackson undoubtedly believed that 
he was the representative of the people against 
the legislative aristocracy; the people apparently 

man, encroaching upon Congress, the Senate, and the judiciary, 
arrests and rolls back the coarse of legislation; interprets laws, 
treaties, and constitutions; assumes the sole power of appointment, 
— holding at the same time absolute control over the army, the 
navy, the post-oflace, an affiliated press, and the whole swarm of 
executive officers, — and now superadded to all this, tremendous 
money power, the fiscal agency ingrafted upon banking capital, — 
can liberty be safe? Safe — when a boa-constrictor is closing 
around her his crawling and crushing folds?" 


regarded him as their champion in the conflict, and 
were willing to trust him with great powers in 
order to insure the victory. 

A similar expansion of the executive power is 
noticeable in the individual states. In fact, the 
movement began there, and not in the national 
government. The selection of the governor was 
taken away from the legislature and submitted to 
the direct vote of the people ; ^ the term of office 
was materially lengthened ; ^ the great weapon for 
the defence of the executive prerogative, the veto, 
was in general vested in the governor,® and also a 
larger share of the appointing power. At the 
same time, the former high property qualifications 
were removed, and the position was made accessi- 
ble to all citizens so far as wealth was concerned. 
In short, there arose a new idea in regard to the 
executive and his place in the scheme of govern- 
ment. This was well expressed by one of the dele- 
gates to the New York Convention of 1821. “An 
erroneous idea,” said he, “ seems to have prevailed 
in relation to the powers and origin of the gov- 
ernor. Who is he J and by whom is he appointed ? 
Does he derive his authority from the king of Great 
Britain Is he an usurper ? If so, let us unite to 

' Penn., 1790; Del., 1792; Ga., 1824; N.C, 1835; Md., 1837; 
N.J. 1844; Va., 1850. 

*Penn., 1790; Ga., 1789; Va., 1830; Del., 1831; N.C, 1835; 
Md., 1837; N.J., 1844. 

• Ga., 1789; Penn., 1790; N.H., 1792; Conn., 1818; N.J., 1844, 


depose him. But, sir, he is the man of the people 
— elected by their suffrages and identified with 
their interests. He is a watchful sentinel to guard 
us from evil and a zealous friend to admonish us 
of error.” 

It is evident, then, that one pronounced feature 
of the democratic movement in the first half of the 
century was the elevation of the executive and the 
degradation of the legislative power. The early 
distrust of the executive, which once took the form 
of a fear that monarchy might return, had disap- 
peared, and also the early confidence in the legis- 
lature. Popular suspicion seemed to be directed, 
not so much against a tyrannical monarchy, as 
against “ encroaching aristocracy.” The public 
was willing to intrust large powers to one man, 
but was jealous of the authority of a legislative 
coterie, or a “banking aristocracy,” or aristocracy 
in any shape or form. As has often been the case, 
the instrument by which the aristocracy was over- 
thrown, in this instance also, was a powerful execu- 
tive. In the national field this change centres 
around the career of Andrew J ackson ; in the 
states the same tendency was at work, readjust- 
ing the balance between the legislative and the 
executive power. 

Another point in national administration was car- 
ried for the radical democracy, when the principle 
of rotation in office and the “ spoils system ” ob- 
tained recognition. This was primarily a victory 


for party organization, but the idea of rotation in 
office was a democratic one. This result had 
already been partly achieved by the provisions in 
state constitutions for short terms of office, and in 
many instances by limitations upon reeligibility. 
But now the general principle was accepted that all 
offices should be held for short terms only, in order 
that all citizens might have better opportunity to 
secure a position. The idea rested on the assump- 
tion that one man is about as well fitted for any 
office as any other man, and may, therefore, be 
safely intrusted with official responsibility. It was 
diametrically opposed to the doctrine that office 
should be held on the ground of special fitness, 
and that long tenure of office gives one, in a sense, 
a vested right to the position. 

By no one was the popular notion more clearly 
stated than by Jackson himself in his first annual 
message to Congress. Here are found the two 
ideas on which the new system rested ; namely, 
that experience is not very important for a public 
servant, and secondly, that a long tenure of office 
is actually detrimental to good public service. 
“ There are, perhaps, few men,” said Jackson, “ who 
can for any great length of time enjoy office and 
power without being more or less under the influ- 
ence of feelings unfavorable to the discharge of 
their public duties.” And again he argued that “ the 
duties of all public officers are, or at least admit of 
being made, so plain and simple that men of in- 


telligence may readily qualify themselves for their 
performance ; and I cannot but believe that more 
is lost by long continuance of men in office than is 
generally to be gained by their experience.” He 
further urged that the proposed measure “would 
destroy the idea of property in office now so gener- 
ally connected with official station ; and although 
individual distress may be sometimes produced, 
it would, by promoting that rotation which consti- 
tutes a leading principle in the republican creed, 
give healthful action to the system.” Such was 
the doctrine of rotation in office as announced by 
President Jackson. 

This view seems to be that experience had be- 
fore entering office is unnecessary, and experience 
gained after entering office is apt to make the 
officer less fit to serve the public. John Taylor, 
in his Inquiry, asserted that more talent is lost by 
long continuance in office than by the system of 
rotation. Talents are called out by the prospect 
of employment, and " smothered by the monopoly 
of experience.” On the floor of the United States 
Senate it was predicted that in time opportunities 
will be enlarged, “ till it shall become a matter of 
course that each individual shall strive to qualify 
himself to discharge the duties of any office to 
which he may be called.” ^ It was, in fact, gener- 
ally believed that no great skill is necessary for 
the work of governmental administration ; and, on 

1 Congressional Globe (1835), 23d Congress, jst Session, I, 273. 


the other hand, that an officer long in the pub- 
lic service would lose sympathy with the people, 
and become a devotee of officialism and bureau- 
cracy. Life estate or even long estate in office 
was attacked by the democracy of this time in the 
same way that monarchy and aristocratic privilege 
had been at an earlier time. This attack was one 
part of the great movement which swept away 
what was left of privilege, and opened the way for 
the democratization of political institutions. That 
some of the ideas accompanying this advance 
should be crude, radical, or extreme, was in the 
nature of things to be expected. 

One of the most important measures of this 
period was the general extension of the suffrage 
from the “ property ” basis to a “ manhood ” basis. 
This change went down to the very roots of the 
political society, and for that reason deserves the 
most careful attention. At the time when the re- 
public was founded there were very strict limita- 
tions on the electorate. Political power was kept 
tightly in the hands of the freeholders, who were 
to all intents and purposes “ the people.” These 
qualifications began to disappear, however, soon 
after the establishment of the federal government.^ 
Few of the new states entering the Union adopted 
the property requirement, and the old states slowly 

' On this point see the authorities already cited, Poore, Char- 
ters and Constitutions; and the debates in the constitutional 
conventions of the various states. 


abandoned the restrictions found in their constitu- 
tions. Stubborn resistance to the tendency was 
often encountered, notably in the case of Virginia, 
New York, Massachusetts, and Rhode Island; yet 
the advance was sure, no backward step was taken, 
and by the middle of the century property qualifi- 
cations for suffrage had been practically abolished 
in all the states. A few restrictions were still in 
existence, but these were not oppressive in charac- 
ter, and excluded no large section of the com- 
munity. In the majority of the states, however, 
even these restrictions were omitted, and the broad 
principle of manhood suffrage (white) received 
full recognition. The old property qualifications 
were outgrown and a new democracy sprang 
up, based, not on the freeholders, but on the 
whole body of adult male citizens. The electo- 
rate was enormously expanded, and there came 
into existence a type of democracy which made 
that of Revolutionary days seem like a limited 

Recognition was won for this new idea only after 
a bitter and protracted struggle. The doctrine that 
suffrage should depend upon property was tena- 
cious of life, and clung desperately to its hold on 
the state constitutions. The property requirement 
was supported by some of the ablest men in the 
nation, and it is from one point of view surpris- 
ing that the opposite principle was able to make 
headway against such talented advocates. John 


Adams, Daniel Webster, and Joseph Story de- 
fended the property qualification in Massachu- 
setts. In New York Chancellor Kent bitterly 
opposed the adoption of universal suffrage; in 
Virginia there were arrayed against the exten- 
sion of the franchise, Madison, Monroe, Marshall, 
Randolph, and Upshur. The opposition to the 
freehold principle could boast of no such formid- 
able champions. 

The earnestness displayed in the defence of prop- 
erty, and the ability with which the cause was con- 
ducted, are such as might have been expected from 
a class long accustomed to the possession of the 
right to govern. To this dominant class, the plan 
of extending the suffrage to practically all male 
adults appeared to be fraught with the very grav- 
est danger. The project seemed to them to be with- 
out foundation either in reason or in justice, and 
they did not see how it could result in anything 
but the subversion of democratic institutions. The 
results of the adoption of the principle of uni- 
versal suffrage as predicted by the famous jurist, 
Kent, were the abuse of liberty, the oppression of 
minorities, the disturbance of chartered privileges, 
the degradation of justice, unequal taxation, crude 
and unstable legislation. “ I hope, sir,” said the 
venerable judge, “we shall not carry desolation 
through all the departments of the fabric erected 
by our fathers. I hope we shall not put forward 
to the world a constitution such as will merit the 


scorn of the wise and the tears of the patriot.” ^ 
On every hand, it was urged that the freeholders 
are the safest and most conservative depository of 
political power. They were considered as the 
only class capable of actively entering into politi- 
cal affairs. Frequent and always unfavorable con- 
trasts were drawn between the solid class of landed 
gentry, and the commercial and laboring classes 
found in the cities, with the uniform conclusion 
that political power might be most safely intrusted 
to those who held the land. This idea was of 
course connected with the theory, sanctioned by 
Jefferson himself, that a democracy thrives best 
where it has an agricultural population as its basis. 
Profound distrust of the capacity of the urban popu- 
lation for the exercise of political power helped ma- 
terially to stiffen the resistance made by the ruling 
class to sharing its authority with others.® From 

* Debates in the New York Convention of jSzi, 219 ft In the 
Virginia Convention of 1829-1830, there was an animated and ex- 
tended debate in which almost every phase of political opinion was 

* Kent, op. cit., 222. In the New York Convention, one speaker 
referred to “ the ring-streaked and speckled population of our large 
towns and cities, comprising people of every kindred and tongue.” 
p. 253. Referring to the commercial classes. Root had said a little 
before this : ” Will not these classes feel as strong an interest in sus- 
taining them (the judges) as the farmer back in the woods ? . . . 
Have they not more frequent occasion to resort to them for the 
protection of their rights? ” p. 223. In the Virginia Convention one 
enthusiastic orator expressed the belief that “if there are any 
chosen people of Gtod, they are the cultivators of the soil.” p. 366 


the strength displayed by the old aristocracy at this 
time, one may judge of the importance and the 
significance of the new democratic movement.^ 

In behalf of an increase in the electorate, the 
argument was less brilliantly conducted, but was 
none the less convincing and effective. Sometimes 
the plea was made in the interest of the commercial 
class, or the laboring men, or of those who had 
done military duty for the state, but were never- 
theless excluded from participation in the suffrage. 
Sometimes it was asserted that the franchise is a 
natural right, and that therefore men cannot be 
justly deprived of it ; but this was not always con- 
tended. The greatest difficulty seemed to be that 
of uprooting the idea that only the holders of 
property have an interest in government strong 
enough to justify giving them a voice in its direc- 
tion. The proposition that men who own no land 
in the community should have a share in the politi- 
cal power was contrary to long-established English 
custom, and to the practice in America since the 
early days of settlement here. The introduction 
of any other idea was necessarily difficult. 

The case of the liberals was most clearly stated 
in the argument that “our community is an as- 
sociation of persons — of human beings — not a 
partnership founded on property.” Thus the re- 
sult was made to turn on the question whether 

^ See Debates in Massachusetts Convention of 1820; New York 
Convention of iSat; Virginia Convention of 1829-1830. 


property or human personality is the more funda 
mental element in civil society, or what their rela- 
tive importance is. One party denounced the rule 
of mere numbers as illogical and absurd, and 
showed that it is wholly impossible to carry out 
the principle fully.^ The other party, with equal 
logic, showed that if property were the only consid- 
eration, voting power ought, then, to be proportioned 
according to wealth. The suffrage extensionists, in 
reply to the property argument, laid great stress 
on the elements of virtue and intelligence in soci- 
ety, and declared these were as worthy of consid- 
eration as the mere ownership of a tract of land. 
As one disputant said, there is nothing in property 
that “ by enchantment or magic converts frail, err- 
ing man into an infallible and impeccable being.” 
It was shown that the non-freeholders are not 
eager for an opportunity to plunder the rich, but 
that they are responsible and reliable citizens who 
may safely be intrusted with the exercise of politi- 
cal power. This assertion was pointed by the fact 
that many citizens who owned no real estate were 
so prosperous and wealthy that they could not 
well be looked upon as untrustworthy individuals 
who would use the ballot to the perversion of the 

Slowly the old idea that the holders of real 

* Randolph referred to the rule of “ King Numbers. ” The reply 
was made that there is no other monarch save King Cypher, 
King Blood, King Sword, or King Purse." Virginia Debates, 389 . 



estate are the political people was discredited and 
abandoned, and the way opened to practically all 
citizens of mature years. The land-holding class 
abdicated, and the mass of the people was in- 
trusted with the power of political control. This 
was by far the most important change made dur- 
ing the Jacksonian epoch, for it radically altered 
the foundation of the republic. 

At the same time, the property qualifications 
for office-holding became unpopular and were cast 
aside. When the new states came in, these re- 
quirements generally found no place, and the old 
states, one by one, abolished the severe require- 
ments of colonial and Revolutionary days.^ A 
few states, notably Delaware and Massachusetts, 
clung persistently to these early provisions or 
remnants of them almost down to the end of the 
nineteenth century, but they were exceptions. 
Generally speaking, by the middle of the century 
property qualifications for office in the United 
States were a thing of the past. Office was no 
longer the monopoly of the few, but was thrown 
open to all so far as wealth was concerned. 

With these restrictions on suffrage and office 
went those of a religious character. A majority of 
the original thirteen states disqualified Roman 
Catholics, and all but New York and Rhode Island 

1 Md., i8io; Penn., 1838; Mass, (except for governor), 1840; 
N.J., 1844; Conn. 1845; N.Y., 1845; Ga., 1847; Va., 1850; NJI, 




imposed a religious test of some kind. These re- 
strictions endured for only a short time, however, 
and very early began to drop out of the state con- 
stitutions. The Protestant clause was first aban- 
doned, and finally the religious tests were omitted 
altogether; Protestant, Roman Catholic, Jew, Uni- 
tarian, and those of no religious profession were 
placed on the same footing in the political world. 
The tendency of the time was wholly opposed to 
conditioning political rights on religious considera- 
tions, and although the case was ably argued by 
those who defended such restrictions, they were 
unable to make effectual resistance to the demand 
that religious belief and political capacity should 
not be connected by the law of the land.^ 

With the abolition of these tests disappeared 
the provisions for public taxation in support of 
churches in the states which had inherited religious 
establishments from the Revolution. The estab- 
lishment of religion had been forbidden the national 
government in the Constitution, and the same pro- 
vision was adopted by the states a little later.* By 
1833 the provisions for taxation in support of eccle- 
siastical organizations had been abolished, except 

^ See the argument in the Massachusetts Convention of iSao-iSii 
passim; also the North Carolina Debates (1835), especially the 
speech pf Judge Gaston in favor of religious toleration, 264-305. 
Consult in this connection Phillip Schaff, Church and State in the 
United States, and Sanford H. Cobb, The Rise of Religious Liberty 
in America, 

* V*, 1785; S.C, 1790; Md., 1810; Conn., 1818; Mmi., 1833. 


in New Hampshire, where the Revolutionary 
clause is still found in the constitution. 

Thus was completed that separation of church 
and state, which has since been a characteristic 
feature of American institutions. The idea was 
early stated by Jefferson, but was not at that time 
able to win a place for itself. The line of reason- 
ing, however, was substantially that which was 
later followed. He urged that rights of conscience 
were not surrendered in the original contract, but 
were retained by the individual, and that govern- 
ment has, therefore, no jurisdiction over that field. 
Government, said be, can interfere only in respect 
to such acts as are injurious to others; but “it 
does me no injury for my neighbors to say there 
are twenty gods or no god. It neither picks my 
pocket, nor breaks my leg.” He denied that uni- 
formity of belief was desirable, pointing out the ad- 
vantages arising from variety. But even if desir- 
able, such uniformity was not attainable by the use 
of coercion. The only effect of the use of force, 
he maintained, was “ to make one half of the world 
fools, and the other half hypocrites.” ^ 

The same principle was strongly stated by Mad- 
ison. He argued that state support of religion is 
unjustifiable because, in the first place, the right to 
religion is inalienable. It is a duty to the Creator, 
and is a reserved right in the social contract. In- 
terference in this matter violates the principle of 
* Notes on Virginia (1784), III, 26l-a66. 


equality by allowing some men the free exercise of 
religion, and forbidding it to others. It gives the 
legislature unwarranted jurisdiction, and confers 
power on civil magistrates to act as judges of re 
ligious truth — a capacity in which they are not 
fitted to serve. Such measures, he urges, are not 
needed for the advancement of the Christian re- 
ligion, nor do they tend to strengthen the civil 
government. The effect of an attempt to enforce 
such laws is simply “to enervate the laws in 
general and to slacken the bands of society.”^ 

The abolition of religious tests and church estab- 
lishment during this period was a recognition of 
these ideas. In general the line of reasoning fol- 
lowed was about that indicated by Jefferson and 
Madison. The underlying cause seems to have 
been the multiplicity of sects, which was highly 
favorable to mutual toleration, rather than antip- 
athy to religion as such. 

Another feature of the democratic movement 
during the first half of the nineteenth century was 
the increasing participation of the people in the 
election of their officers. In the earlier period 
this power had been largely in the hands of the 
legislature, and hence the choice of officers was, 
to that extent, indirect. With the increasing em- 
phasis on the people, however, and the reaction 
from the early confidence in the legislatures, there 

1 " Remonstrance to the General Assembly of Virginia on the sup- 
port of religious teachers” (1785). Works, I, 162-169. 


came a decided change. Elections were taken out 
of the hands of the legislative bodies, and officers 
were chosen directly by the popular vote. In the 
national government, popular voting under the dis- 
trict system took the place of election by the legis- 
lature in the choice of representatives in the House, 
and the choice of presidential electors was also 
taken away from the legislature. In the states a 
tendency in the same direction was clearly evi- 
dent. The choice of governor was taken away 
from the legislature and confen-ed upon the people, 
thus rendering him less dependent upon the legis- 
lative branch of government. Other officers, such 
as the treasurer and the auditor, were given over 
to popular election in place of choice through the 
legislature. Many minor officers were also made 
directly elective, such as clerks of court, sheriffs, 
and justices of the peace. The theory upon which 
this action rested was that the legislature is a 
more or less aristocratic body, and that the people 
should participate directly in the choice of their 

In this same connection should be noticed the 
popular opposition to certain elements in the judi- 
cial system* which were considered as aristocratic. 
The courts, state as well as national, were objects 
of suspicion and often of open hostility.^ The 

' See McMaster, Vol. Ill, 153 9 ., for account of “judge-break- 
ing” in Pennsylvania, Maryland, and New Hampshire; Burgess 
Middle Period, I95 9 . 


Federal Supreme Court was feared because of its 
alleged encroachment upon the rights of the indi- 
vidual states, but the commonwealth courts also 
met with opposition from the newly awakened 
democratic sentiment. This desire to put a check 
on the judiciary was expressed in two ways; 
namely, by an abbreviation of the judicial term of 
office, and by constitutional provision for the elec- 
tion of the judges by the people. In the early days 
of the Republic, the tenure of the judges had gen- 
erally been during good behavior. Life tenure, 
however, was obnoxious to the new democracy, and 
was repudiated as occasion offered, particularly in 
the South and West, and also in some of the 
Eastern states.^ The tenure for life was replaced 
by a shorter term of from five to fifteen years, six, 
seven, and eight years being the most common 
periods allotted. Popular election of the judges 
was less easily carried through than the shortening 
of the terra. At first, provision was made for the 
election of justices of the peace and minor officers, 
but toward the middle of the century popular elec- 
tion of the higher courts began to find general 
favor. This movement was looked upon with 
alarm by the conservative class, but the idea made 
rapid progress as constitutions were constructed 
and reconstructed, and soon won a general victory. 
In the period from 1846 to 1853, no fewer than 

r Of the old states, Fenn., 1838; N.J., 1844; N.Y., 1846; Va, 
1850; Md., 1851. 



thirteen states recognized the elective principle 
in the choice of judicial officers of the highest 
grades.^ Thus, with the abandonment of life 
tenure of office and the adoption of a popular sys- 
tem of judicial election, the democracy triumphed 
in the third great branch of government — the 

Another evidence of the democratic tendencies 
of this period is the method in which changes in 
the fundamental law were made. Of the Revolu- 
tionary constitutions, only two were submitted to 
the people, the others being adopted by conven- 
tion alone. By 1830 the practice of submitting 
constitutions to a popular vote for ratification had 
become frequent; and in the period from 1830 to 
1850 only two constitutions went into operation 
without having received popular sanction at the 

Summing up the democratic movement of this 
period, we have the following results. The elec- 
torate was largely increased by the abolition of 
property qualifications. Religious and property 
requirements for office-holding were abandoned, 
terms of office were shortened, the principle of 
'‘rotation in office” was accepted, provision was 

1 Cal., la., Ky., La., Md., Mich., Mo., N.Y., Ohio, Penn., Tenn., 
Va.. Wis. 

’ Del., 1831; Ark., 1836. Cf. Oeveland, of. cU., 113; Jameson. 
Constitutional Conventions. 



new philosophy will be considered in a subsequent 
chapter on modern tendencies.^ 

^ Attention may be called at this point to a change in the preya- 
lent theory as to the form of the contract upon which society rests. 
In Revolutionary times it was a common opinion that the parties to 
the agreement were the king, or government, and the people. The 
later thinkers distinctly repudiated any contract between governor 
and governed, and held that the agreement was one between indi- 
viduals. The governors, it was held, were not parties to a contract, 
but the mere agents or servants of the people. Cf. Madison, IVeris, 
IV, 63; John Taylor, Inquiry, 424; James Wilson, Works, I, 272. 



One of the most interesting developments of 
political theory in the United States is that which 
arose out of the controversy over slavery in the 
years between 1830 and i860. During the period 
of the Revolution and the early days of the Re- 
public the general sentiment was unfriendly to slav- 
ery.i The existence of the custom was lamented 
by such men as Washington, Jefferson, Monroe, 
and Adams. There was general regret that the 
institution had ever been planted in America, and 
it was hoped that it would in time be abandoned. 
In the Northwest Ordinance of 1787 the anti- 
slavery principle was recognized, and later in the 
abolition of the slave trade. Slavery was gradually 
abolished in the Northern states, and the Coloniza- 
tion Society represented the desire to put an end 
to it in the South. No effort was made to defend 
the institution or to present it as an ideal basis for 

* William Poole, Anti-Slavtry Oftnions before iSoo; S. B. 
Weeks, “ Anti-Slavery Sentiment in the South,” in Publications of 
the Southern History Association (1898). 




the political and economic structure of a society. 
At best, slavery was regarded as a necessary 

Certain influences were at work, however, that 
tended to bring the question of slavery into greater 
and greater prominence. On the economic side, 
there was the invention of the cotton gin and other 
contrivances which made possible the rapid ex- 
pansion of the cotton industry, and thus offered 
new fields for the employment of slave labor. On 
the political side, the territorial expansion of the 
United States precipitated a bitter struggle as to 
the status of the new acquisitions, and gave rise 
to problems of the gravest character. And, 
finally, like oil on the flames, came the agitation 
of the Abolitionists. The beginning of the period 
of controversy may be placed at 1830. In that 
year occurred the July Revolution in France; 
in 1831 the Southampton massacre in Virginia; 
and in the same year the foundation of the Boston 
Liberator. During the thirty years following this 
time, while the conflict between slavery and anti- 
slavery was at its height, the doctrines of both sides 
were fully stated, and the philosophy of slavery 
discussed in all its aspects. 

In the course of this discussion many different 
sides of the question were considered. From the 
economic point of view inquiry was made as to 
whether slavery was or was not a profitable insti- 
tution, and how it compared with the system of 


free labor.^ From the constitutional point of view, 
questions of profound importance were discussed, 
involving the power of Congress in the territories, 
the admission of new states, the concept of United 
States citizenship. From the ethical side, inquiry 
was made to determine whether the relations of 
slave and master rested on a proper moral basis. 
There was also discussion from the standpoint of 
religion as to whether slavery was contrary to the 
principles of Christianity, and particularly as to 
whether slavery was sustained hy the Scriptures. 
And finally, there was an animated controversy as 
to whether the status of slavery is consistent with 
the principles of political science. This is the 
inquiry which forms the subject of this chapter. 
Upon what theory was the practice of slavery 
defended, upon what principles was the attack 
upon it conducted ? What was the political theory 
of the anti-slavery forces ? What was the political 
theory of the pro-slavery party ? How were they 
related to each other ? 

The bitterest attacks on slavery were made by 
the Abolitionists, but they were not the only or 
perhaps the typical opponents of the system. The 
forms which the anti-slavery theory took were 
many and various, ranging from the statesmanlike 
views of such men as Lincoln to the radical utter- 

1 On this point see H. R. Helper’s -vork, Tit Impending Crisis 
of the Sottik (1859). With this compare Southern Institsetes, by 
G. S. Sawyer, a member of the Louisiana Bar (1859). 



ances of the extreme Abolitionists of the Garri> 
sonian type.^ 

In this discussion an analysis will be made of 
three forms of the anti-slavery theory : first, the 
theory of the radical Abolitionists; second, the 
philosophic argument; and third, the doctrine of 
the statesmen. These theories are not very much 
different in final analysis, but in form they show 
divergences which should be noted. This method 
of classification is, no doubt, open to certain objec- 
tions, but is perhaps useful in distinguishing the 
various shades of political thought. 

The impulse to the anti-slavery crusade was 
given by the radical Abolitionists, and their doc- 
trines and tendencies may therefore be first con- 
sidered. This group of agitators differed from the 
conservative class in that they demanded the im- 

* On this period, see James Schouler, History of the Unitei 
Slates; Hermann von Holst, The Constitutional History of the 
United States ; J. W. Burgess, The Middle Period; Henry Wilson, 
History of the Rise and Fall of the Slave Power ; J. F. Rhodes, 
History of the United States ; J. C. Hurd, The Law of Freedom and 
Bondage. For statements of the anti-slavery theory, see William 
lay, MiscellaTteous Writings on Slavery William Goodell, 

Slavery and Anti-Slavery (1852); Richard Hildreth, Despotism in 
America (1854); Wendell Phillips, Works; Daniel R. Goodwin, 
Southern Slavery in its Present Aspects Albert Barnes, The 

Church and Slavery (1857), Scriptural Views of Slavery (1856); 
T. S. Goodwin, The Natural History of Secession (1865); Debates 
in Congress, especially Sumner on the crime against Kansas, 1856, 
1st Session, 34th Congress, Appendix. An excellent summary of the 
situation is given by J. E. Caimes in The Slave Power (1863). 


mediate and unconditional abolition of slavery with- 
out concession or compromise. They differed 
from the philosophic group in that they reasoned 
in general less strictly and carefully, being given 
to action rather than to reflection. The funda- 
mental premise of the Abolitionists was about the 
same as that expressed in the Declaration of Inde- 
pendence ; namely, that all men are created equal 
and are endowed with a number of inalienable 
rights, which are independent of all government, 
and cannot justly be taken away by any govern- 
ment. They regarded liberty as a birthright of 
man, and not as a privilege to be enjoyed under cer- 
tain conditions. Consequently, they looked upon 
slavery as a piece of monstrous injustice to those 
deprived of their natural liberty. 

In the platform of the National Anti-Slavery 
Society (1833) the following declaration was made : 
"The right to enjoy liberty is inalienable. To 
invade it, is to usurp the prerogative of Jehovah. 
Every man has a right to his own body, to the 
products of his own labor, to the protection of 
the law, and to the common advantages of society.” 
With this general statement of principle perhaps 
all the opponents of slavery could agree ; but with 
the violent conclusion drawn, not all were in har- 
mony. This conclusion was that “ all those laws 
which are now in force, admitting the right of 
slavery, are, therefore, before God, utterly null and 
void." It was characteristic of the Abolitionists, 



however, to be intolerant of delay, and to demand 
immediate emancipation. They did not believe 
in postponing the day of liberation, because they 
could not see the necessity for any long period of 
preparation. They considered that liberty is an 
innate faculty of man, and that he requires no 
special training for its effective exercise. “Lib- 
erty,” said one, “being the birthright of every 
man, the natural and normal condition of his 
existence, all the preparation he needs for its en- 
joyment is born with him. He gets his fitness for 
liberty as he gets his hands and feet — ^not by edu- 
cation, but by inheritance.” It was expressly de- 
nied that a good government is fit only for the 
best of people, that is, “the most wise, virtuous, 
and intelligent.” If this were true, it was said, 
then one might, with equal logic, maintain that 
“bad children should have bad parents, or that 
sick people should have worse treatment than 
those in health.” ^ 

To those holding such views, the argument for 
the postponement of emancipation because of the 
unfitness of the negro was looked upon as fallacious 
and dangerous. “ Gradualism,” as it was termed, 
was repudiated at every point. “Has not the 
experience of centuries shown,” said Garrison, “ that 
gradualism in theory is perpetuity in practice.?” 
Acting on this principle, they attacked and over- 

William Hosmer, The Higher Law (1852); see especiall^f 
Chap. XIII, on the Capacity of Slaves for Civil Government. 



threw the Colonization Society, denounced slavery 
as a “ combination of death and hell,” branded the 
Constitution of the United States as a “ covenant 
with death and an agreement with hell,” and 
declared for a dissolution of the Union. Inability 
to see any possible justification for the institution 
of slavery led them to say of slaveholders : “ They 
ought not to be allowed seats in Congress. No 
political, no religious copartnership should be had 
with them, for they are the meanest of thieves and 
the worst of robbers. We should as soon think 
of entering into a compact with the convicts at 
Botany Bay and New Zealand. . . . We do not 
acknowledge them to be within the pale of Chris- 
tianity, of republicanism, of humanity.” ^ 

The ultra-radical wing of the Abolitionists did 
not stop at denunciation of slavery and of the 
United States government for failing to put an end 
to it. They went on to denounce all systems of 
government as such. This doctrine took the form 
of the “ non-resistance ” or “ no-government theory,” 
of which Garrison and Noyes were the great 
champions, and of which the New England Non- 
Resistance Society was an organized expression. 
This body declared in 1838 that its members could 

^ Boston Liberator (1841). Garrison said on one occasion, that 
his manner of expressing himself was unpleasant because of its 
plainness and directness. He could, be said, be as smooth and 
politic as any one, but I do not so choose, and much prefer nature 
to art,” L£/a of Garrison, by W, P, and F. J. Garrison. 




not “ acknowledge allegiance to any human govern- 
ment,” nor would they oppose any such government 
by resort to physical force. In accordance with 
this principle they disclaimed any particular love 
for the United States. “We love the land of our 
nativity, it was said, only as we love all other lands. 
The interests, rights, liberties of American citizens 
are no more dear to us than those of the whole 
human race.” They recommended that no physi- 
cal force be employed either for or against their 
fellow-men ; that all should refuse to hold office or 
to vote, and none should invoke the aid of the 

The principle on which this action or inaction 
was based was that of opposition to coercion as a 
means of securing obedience. The use of violence 
they looked upon as a wholly irrational and un- 
Christian way of maintaining order. Since all 
governments are based on this principle, it follows 
that they are, “ in their essential elements and as at 
present administered, all anti-Christ ; that they can 
never by human wisdom be brought into conformity 
with the will of God.”^ If this is true, then all 
Christians are obligated “ to come out now and be 
separated from the kingdoms of this world.” All 

' This idea had also a religioxis basis in the "holiness ” or per- 
fectionist movement. The non-resistance idea was also adopted 
various socialistic organizations. See J. H. Noyes, History of 
American Socialism, 

^ Garrison’s Life, II, 202. 



governments, whether despotic, monarchical, or 
republican, are to be supplanted by the “ King of 
Kings and Lord of Lords, who is to rule in righteous- 
ness.” ^ The laws of this kingdom are written 
upon the hearts of men, not upon parchment ; they 
depend not on human, but on divine wisdom ; the 
weapons of this kingdom are not carnal, but spiritual. 
It was, therefore, urged upon all Christians to with- 
draw their allegiance from any human government, 
and regard themselves as subjects of the kingdom 
of God only. 

The following statement gives an adequate sum- 
mary of the views of this party : “ As every human 
government is upheld by physical strength, and 
its laws are virtually enforced at the point of the 
bayonet, we cannot hold any office which imposes 
upon its incumbents the obligation to compel men 
to do right on pain of imprisonment or death. We 
therefore voluntarily exclude ourselves from every 
legislative and judicial body and repudiate all human 
politics, worldly honors, and stations of authority. 

. . . If w cannot occupy a seat in the legislature 
or on the bench, neither can we elect others to act 
as our substitutes in any such capacity. It follows 
that we cannot sue any man at law to compel him 
by force to restore anything which he may have 
wrongfully taken from us or others ; but if he has 

' See the letter qf Noyes to Garrison (March, 1837), Lift,VL, 145- 
148. In 1S37 Noyos nominated Jesus Christ for President of the 
United States. 



seized our coat, we shall surrender up our cloak 
rather than subject him to punishment.” ^ 

The capture and return of fugitive slaves in 
the midst of free communities occasioned fre- 
quent expressions of the right of resistance to 
government, and in some cases of even more radi- 
cal sentiments. In his famous iith of March 
speech, Seward declared that “there is a higher 
law than the Constitution,” and maintained that 
slavery was contrary to the laws of God. ^ In the 
famous Van Zandt case. Chase argued that the fu- 
gitive slave law was unconstitutional, Decause the 
Constitution is a “free constitution.”® It was de- 
signed, he said, “ to establish as written law cer- 
tain great principles of natural right and justice, 
which exist independently of all such sanction.” 
Slavery, he declared, was contrary to natural right, 
and “ no legislature can make right wrong, or wrong 
right.” Even if there are no express restrictions 
in the Constitution, "there are certain vital prin- 
ciples in our national government which will as- 
certain and overrule an apparent and flagrant abuse 

^ Declaration of sentiments adopted at the Peace Convention 
held in Boston, September 18-19, 1838. 

Congressional Globct 31st Congress, ist Session, Appendix. 
Cf. Frederick Bancroft, The Life of Seward^ 1 , 242 ff. Seward 
refused to explain what he meant by ” higher law,” or what its 
p^’actical application would be. 

\n argument for the defendant, submitted to the Supreme 
Court o'* the United States at the December term, 1846, in the case 
of Whaitor Jones v. John Van Zandt, 93. 



of legislative power.” He further declared that 
no court was bound to regard an unjust law, but on 
the contrary was obligated to refrain from enforc- 
ing the provisions of any such act. 

In a time when statesmen like Seward and Chase 
could speak like this, it was to be expected that 
more radical men would go much farther in this 
direction.! A striking example of this was the 
treatise on Civil Disobedience by the famous 
author, Thoreau (1849). Evidently exasperated 
beyond all bounds by the attitude of the govern- 
ment, state as well as national, Thoreau expressed 
his opinion of government in general, in terms by 
no means flattering. He declared that the best 
government is no government at all, and that 
when men are fully developed, they will have 
none. The value of government, he did not 
estimate very highly. It is at best an expedi- 
ent, said he, but “most governments are usually, 
and all governments are sometimes, inexpedient.” * 
Even in America government accomplishes but 
little, for what has been done here is due largely 
to the character inherent in the American people, 
and this would have accomplished even more, “ if 

1 Cf. The Higher Law in its Relation to Civil Government with 
Particular Refer e 7 ice to the Fugitive Slave Law, by William Hosmer, 
1852; C. K. Whipple, The Non-Resistance Principle, with Particu- 
lar Application to the Help of Slaves by Abolitionists (i860). 

^ Cf. Slavery in Massachusetts (1854). With Thoreau compare 
Emerson’s individualistic theories, contained in the essays on Self 
Reliance and Politics, 



the government had not sometimes got in its way." 
Government is, indeed, very often a hindrance to 
human activity. “Trade and commerce,’’ said 
Thoreau, “ if they were not made of india-rubber, 
would never manage to bounce over the obstacles 
which legislators are continually placing in their 
way." Whenever government comes into conflict 
with conscience, the former must yield. One must 
be, said he, in his expressive phrase, a man first and 
a subject afterward. In view of the attitude of our 
government toward slavery, he maintained that no 
one could conscientiously associate himself with the 
American political system, but must withdraw the 
support given to it, whether in the shape of per- 
sonal service or of a contribution of property as 
taxes. If a few men would adopt this policy and 
adhere to it for a time, he felt confident that both 
war and slavery would soon be given up. Doubt- 
less this might involve the imprisonment of the 
person offending ; but in this case the prison is the 
“ only home in a slave state in which a free man 
can abide with honor. ’’ ^ It is true that one who 
resists the government may find it difficult to live 
in as great comfort as he might otherwise enjoy. 

‘ Thoreau himself acted on this principle and spent one night in 
jail as a consequence — a punishment he was disposed to ridicule, 
however. " I saw,” said he, “ that the state was half witted, that it 
was as timid as a lone woman with her silver spoons, and that it did 
not know its friends from its foes, and I lost all my remaining re- 
spect for it and pitied it.” 



“ You must hire or squat somewhere, and raise but 
a small crop and eat that soon,” but this may well 
be done for the sake of a clear conscience. It was 
ingeniously suggested, however, that one is not 
obligated to forego any advantage offered him by 
the state, since he is really at war with the common- 
wealth, and on this basis is entitled to take from 
the enemy whatever he can get. 

No government, said Thoreau (and this is the 
beginning and the end of his theory), can have any 
“ pure right over my person and property but what 
I concede to it.” We have progressed from abso- 
lute to limited monarchy, thence to democracy ; 
but it is possible to take one step more in organiz- 
ing the rights of man. The ideal state must regard 
the individual as “ a higher and independent power,” 
from which its own authority is derived, and must 
treat him accordingly. 

Such was the theory of the radical Abolitionists, 
and this is the direction in which it led. It has 
already been stated that the fundamental premise 
in the political philosophy of this school was the 
original and inalienable liberty of all men. Starting 
from this highly individualistic premise, it is easy 
to see how the most radical conclusions were 
reached, even the abolition of government, or 
refusal to take any part in it, and in other cases re- 
fusal to affiliate with any of the churches.^ To such 

^ For an exposition of the tendencies of ultra-radical Abolitionism, 
see the Life of William Uoyd Garrison, by W. P. and F. J, Gairison 



men as Garrison, the emancipation of the slaves 
was only a small part of the program. They 
believed in the broader idea of “ universal emancipa- 
tion,” by which they understood “the emancipation 
of our whole race from the dominion of man, from 
the thraldom of self, from the government of brute 
force, from the bondage of sin. This was emanci- 
pation evolved into a mystical and transcendental 
sort of “ Perfectionism,” marked by a coming-out 
from the church and the state.^ It would of course 
be unfair to suggest that all Abolitionists indorsed 
such doctrines as these, but to the radical wing they 
were acceptable, and the tendency of Abolitionism 
was necessarily radical. 

Radical Abolitionism was in fact only a part of 
a larger movement which swept over the North. 
Transcendentalism, idealism, humanitarianism, were 
dominant in the philosophy of the time during 
which the anti-slavery crusade was at its height. 
Religious and social reforms of every description, 
genuine and sham, were eagerly taken up and were 
propagated with the greatest enthusiasm. In the 
religious world these tendencies found expression 
in a decided liberal movement which sometimes 
took the form of a demand for no religion at all. 
New sects arose with strange doctrines; the 
Mormons, for example, made many converts at this 

1 The “ come-outers ” believed in coming out of the churches 
on account of their failure to take a proper stand on the slavery 



time, while the Millerites proclaimed and awaited 
confidently the advent of the millennium. Social- 
istic ideas flourished, and experiments such as those 
of Brook Farm and Icaria were undertaken. A 
vigorous assault was made upon Masonry and a 
powerful political party formed on the basis of 
this idea alone. The temperance movement was 
actively carried on and won notable victories. 
The agitation for women’s rights was begun, and 
able champions of the cause appeared. The 
environment was favorable to the rapid and 
rank growth of reforms and crusades, many of 
them utterly impracticable, but all of them 
pushed on with the greatest devotion and en- 
thusiasm. Abolitionism was only one part of a 
great current of liberal and humanitarian senti- 
ment that was sweeping over the country. The 
frequent blending of the anti-slavery movement 
with these other tendencies made it still more 
difficult for the South to understand or to value 
properly the real significance of the anti-slavery 

A more philosophic presentation of the anti- 
slavery theory was that made by a certain group 
of thinkers of which William E. Channing^ and 
Francis Wayland ^ were the ablest representatives. 

' Essays on Slavery (1835). 

2 The Elements of Moral Science, by Francis Wayland, president 
of Brown University (1835), one of the strongest works on the anti- 
slavery side. 



The method of these men presents a decided con- 
trast to the simple style and language of Lincoln, 
on the one hand, and to the fiery utterances of 
the Garrisonian Abolitionists on the other. The 
starting-point in this theory was the proposition 
that every man is a rational and moral being. As 
such, he must be recognized by all as a person, 
and cannot be regarded as a thing merely. He is 
an end and purpose in himself and cannot be 
a mere instrument to accomplish the ends or 
purposes of others. He is a person, and cannot, 
philosophically, ethically, or politically, be justly 
deprived of all the prerogatives of personality. 
All men, it was asserted, are equal in the essential 
and fundamental elements of their humanity. All 
men are endowed with a rational nature as dis- 
tinguished from the animals; all men are gifted 
with the faculty termed conscience ; all men have 
the capacity for development. These attributes are 
common to humanity, the universal characteristics 
of rational beings; in these respects all men are 

Endowed with these high characteristics, all 
moral beings possess certain rights, which may be 
summed up as the right to exercise one’s powers 
and to promote the happiness and virtue of one’s 
self and others, as one sees fit, and so far as one 
does not interfere with the equal rights of others. 
A more specific enumeration is found to include 
the following. All men as rational and moral beings 



have a right to exercise and develop their intellect ; 
they have a right to inquire into their duty ; to be 
respected by others in accordance with their moral 
worth ; to receive a fair equivalent for their labor ; 
to sustain domestic relations ; and other such funda- 
mental rights arising from the fact that man is a 
moral personality. These rights are the preroga- 
tives of every individual. He cannot give them up 
if he would ; they are inherent and inalienable, an 
essential part of his nature, indispensable to the 
proper performance of his function in the world. 
These rights must not only be regarded by other 
individuals, but they must be respected and main- 
tained by the government. " Right,” says Chan- 
ning, “ is older than human law. Law ought to be 
its voice.” Considerations of expediency should 
not be allowed to weigh against these rights, for the 
good of the individual is really of more importance 
than the welfare of the state. It is a more sacred, 
exalted, enduring interest than any accessions of 
wealth or power to the body politic.^ It was con- 
ceded, however, that there are extreme cases in 
which these rights may be suspended for their ulti- 
mate and permanent security, and in the interest of 
the community at large. 

The conclusion was, then, that slavery, which is 
subversive of all these rights, must be regarded as 
fundamentally unjust — a usurpation of the sacred 
prerogatives of humanity. Slavery makes of man 
^ Channing, op. cif., 47. 



a thing, a piece of property, whereas he is essen. 
tially and primarily a person. It constitutes a 
system that cannot possibly be justified on any 
rational basis. 

Furthermore, it was pointed out that the influ- 
ence of slavery was unfavorable to the growth of 
democracy. The spirit of liberty, it was said, can- 
not live and flourish in an atmosphere of human 
slavery. Free institutions rest upon the basis of a 
love of liberty, but this is destroyed or impaired by 
the practice of slavery. The contempt for human 
rights as manifested in the treatment of the slave 
leads to a universal contempt for all the rights of 
men, and must bring on a general decline of the 
spirit of liberty. Democracy, ^ it was said, implies 

that one has learned to obey as well as to com- 
mand. In a slaveholding community the habit of 
command is acquired, but that of obedience is little 
cultivated, except by the slaves. Hence the ten- 
dency is to make men arrogant and imperious, 
and consequently ill-adapted for democracy. The 
claim was made, therefore, that the influence of 
slavery is ultimately fatal to the liberty -loving spirit 
upon which free government rests. Democracy can- 
not exist with slavery as its basis. If, as some say, 
democracy is dependent upon a slave system, then 
such a government is scarcely worthy of perpetu- 
ation. “ Those who tell us,” said Channing, “ that 
slavery is a necessary condition of a republic, do 
^ Channing, lOO. 



not justify the former, but pronounce a sentence of 
reprobation on the latter.” ^ 

In brief, then, what we have called the philo- 
sophical argument against slavery was, that every 
rational moral being has the right to develop his 
own powers, is an end or purpose in himself, and 
cannot justly be held as property by any other man. 
Slavery was therefore regarded as a status con- 
trary to the rights of every or any human being. 
It was conceded that the community is justified 
in imposing a certain degree of restraint upon its 
members, but emphatically denied that slavery is a 
proper means for this, since it amounts to the per- 
manent subversion of all rights. The tendency 
with this school was altogether toward the consid- 
eration of the rights of the individual in contrast to 
those of the community. What they were endeav- 
oring to do, was to show that in every political 
system a large field of autonomy should be left to 
the individual, and that only under exceptional 
circumstances should he be reduced to a condition 
where he would enjoy no rights at all. 

One of the ablest and certainly the most repre- 
sentative statement of the anti-slavery theory was 
that made by the great leader of the conservative 
emancipation party — Abraham Lincoln. His rea- 
soning was not that of an agitator or of a philoso- 
pher ; yet it was profound, it was stimulating, and it 

1 Hid., 103. Cf. Richard Hildreth, Theory of Politics (1853)* 
also Despotism in America (1854). 



was politically masterful. Since it represented the 
opinion of a large group of men who were neither 
radical Abolitionists nor acute philosophers, the the- 
ory he advanced is worthy of careful examination. 

As Lincoln viewed the situation, there should be 
no repudiation of the teaching of the Declaration 
that all men are created equal. He firmly believed 
that that doctrine, properly understood and applied, 
should still be regarded as a foundation principle 
of free government. He would not admit that 
the Declaration was intended to apply only to the 
British colonists, or to the whites alone, or to any 
class or caste of men ; but he did not interpret this 
statement to mean that all men are equal in all 
respects. The Fathers “did not mean to say 
all were equal in color, size, intelligence, moral de- 
velopment or social capacity.” ^ What they did 
mean was that “ all men are equal in the possession 
of certain inalienable rights among which are life, 
liberty, and the pursuit of happiness.” It was not 
understood that all men are exactly equal in all re- 
spects, nor was it intended to confer political equal- 
ity upon all men alike and immediately. This was 
not the purpose of the founders of the republic. 
They meant merely “to declare the right so that 
enforcement of it might follow as soon as circum- 
stances should permit.” The Declaration was in- 
tended to be, and in fact is, a fundamental principle 
to serve as an ideal for free society, “ constantly 
* Works, I, 232. 



looked to, constantly labored for, and even though 
never perfectly attained, constantly approximated, 
and thereby constantly spreading and deepening its 
influence, and augmenting the happiness and value 
of life to all people of all colors everywhere.”^ 
Not only is it to serve as an ideal toward which 
men should struggle, but it is also to prevent a re- 
turn to the past — an impressive warning “ to all 
those who in after times might seek to turn a free 
people back into the hateful paths of despotism.” 

To the institution of slavery, therefore, Lincoln 
was wholly Opposed. He did not demand for the 
negro equal social and political privilege with the 
white, but on the contrary expressly disclaimed 
any such desire. He did claim for the black man 
“ the right to put into his mouth the bread that his 
own hands have earned,” and asserted that in this 
respect he is the equal of every other man. The 
fact that others are more highly endowed cannot 
be used to justify them in depriving their inferior 
of the little that he does have. The alleged right 
of the superior to enslave the inferior man, he 
regarded as contrary to justice and the principles 
of all free government. “ No man,” said Lincoln, 
“ is good enough to govern another man without 
that other’s consent.” ® “ When the white man 

governs himself, that is self-government ; but when 
he governs himself and also governs another man, 
that is more than self-government — that is despot- 
1 iHd. * Hid. 1 , 195. 



ism.” The whole argument from the right of the 
superior to enslave and oppress the inferior, he 
denounced as identical in object and effect with the 
old plea for “classification, caste, and legitimacy.” 
Whatever form this reasoning may assume, it is in 
reality “ the same old serpent ” ; it is a principle 
essentially hostile to free and popular government. ’ 

Such doctrines, he argued, are “the vanguard, 
the miners and sappers, of returning despotism.” 
These ideas must be driven out not only for the 
sake of the black man, but in the interest of the 
white as well, for they are a menace to his own 
equality and freedom. It must not be supposed 
that freedom and slavery can permanently endure 
side by side. One must overthrow the other, and 
one principle be everywhere recognized. “This 
is a world of compensation,” said Lincoln, “ and he 
who would be no slave, must consent to have no 
slave. They who deny freedom to others, deserve 
it not for themselves, and under a just God can- 
not long retain it.” Thus Lincoln not only main- 
tained that this nation could not permanently 
endure half slave and half free, but also formulated 
the universal law that freedom and slavery cannot 
permanently exist side by side. 

Lincoln believed that there are two great the- 
ories of society.^ According to the “mud-sill” 

1 Annual address before the "Wisconsin Agricultural Society at 
Milwaukee (1859). Works, I, 580 ff. See also II, 105. Annual 
Message to Congress (1861). 



theory, capital always takes precedence of labor, 
and must be honored and rewarded accordingly. 
Capital employs either hired laborers or slaves, 
both of which classes tend to remain in their de- 
pendent position. Education and labor are re- 
garded as incompatible, while the educated and the 
laboring classes are separated by a sharp dividing 
line. “ A Yankee who could invent a strong- 
handed man without a head would,” said Lincoln, 
“receive the everlasting gratitude of the ‘mud-sill’ 

According to the other theory, labor is prior to 
and independent of capital. The laborer is not 
limited to the so-called laboring class ; for there is 
a large group of those who “ mingle their own 
labor with capital.” All men are or should be 
educated, so that the sharp distinction between the 
educated and the laboring classes tends to disap- 
pear. This system, which Lincoln champions, opens 
the way to all, inspires all with hope, and tends to 
develop energy and to improve the condition of all. 

It is evident, then, that Lincoln looked upon the 
conflict between slavery and its adversaries as one 
part of the great struggle between liberty and des- 
potism, and believed that American slavery could 
not long be tolerated without endangering the 
foundations of American liberty. In his opinion 
slavery and despotism were inextricably inter- 
woven. He did not, however, demand the imme- 
diate emancipation of the slaves, nor did he ask 



or expect that they be placed on terms of entire 
equality with the whites. Admitting the inequality 
of the races, he did not think it logical or expedient 
to conclude that the inferior race should be wholly 
deprived of political rights. Such a course he 
considered as selfish and unjust, and sure to bring 
retribution upon those who attempted it. 

This is, in general outline, the anti-slavery theory. 
In spite of the widely different forms in which the 
idea was stated by agitators, philosophers, and 
statesmen, there was a fundamental agreement 
underneath all this diversity. The point of union 
was the belief that all men are created equal, and 
are endowed with certain natural rights which must 
everywhere be respected. In every form of theory 
the very term “ slavery ” was assumed to be synony- 
mous with injustice, and scarcely any argument 
was needed to show its enormity. In the Revolu- 
tionary days the climax in the denunciation of 
Great Britain had been the charge that the colo- 
nists, taxed but not represented, were being reduced 
to the level of slaves, and no one had thought of 
saying that slavery might be a benefit to both ruler 
and ruled. Slavery had been considered then, as 
it was later regarded by the anti-slavery party, the 
very name for tyranny and oppression of the most 
execrable kind. To justify slavery would be to 
subvert the foundations of free government — a 
crime against civilization and humanity. 


In respect to the practical program most suitable 
to the conditions, there was a wide difference be- 
tween such men as Lincoln and those of the Gar- 
risonian type. One party demanded the immediate 
and unconditional emancipation of the slaves as an 
act of simple justice to those in bondage, trusting to 
the ability of the newly made freemen to take and 
use their liberty without danger to themselves or 
to the nation. The other party, although de- 
nouncing slavery as an evil, and demanding its 
ultimate abolition, clearly perceived the great diffi- 
culties involved in the transition from bondage to 
freedom, for the negro and for the community in 
general. They therefore counselled a policy of 
moderation and conservatism. 

The pro-slavery theory was almost wholly the 
product of the three decades preceding the out- 
break of the Civil War. Before this time no 
organized or well-sustained effort was made to 
defend slavery, but it was generally treated in an 
apologetic way. As late as the controversy over 
the admission of Missouri, it was said that the 
entrance of slavery into new territory was not 
expected to strengthen the institution, but to 
weaken it by scattering the evil. In 1832, in the 
Virginia legislature, the whole question of slavery 
was discussed, and emancipation was openly and 
strongly urged by many. The increasing bitter- 
ness of the attacks on slavery, however, touched 



the pride of the South, and aroused its leaders to 
find a justification for the institution. In the face 
of the furious arraignment made by the Abolition- 
ists, it seemed necessary to assume some other 
attitude than that of indifference toward the ques- 
tion. As Calhoun said, the discussion “ has com- 
pelled us of the South to look into the nature and 
character of this great institution, and to correct 
any false impressions that eveti we had entertained 
in relation to it.” ^ As a result of this reinvestiga- 
tion of the question, the opinion of the Southern 
leaders was radically changed. They no longer 
apologized for slavery, they defended it ; they not 
only defended it as a necessary evil, but upheld it 
as a positive good.” 

The formulation of the pro-slavery theory may 
be attributed in large measure to John C. Calhoun, 
assisted by such able associates as Stephens and 
Davis, together with a clever group of thinkers, 
including Bledsoe,^ Simms,® Sawyer,^ Dew,® and 

1 Works, II, i8o (1838). 

“ A. T. Bledsoe, Professor of Mathematics ia the University of 
Virginia, An Essay on Liberty and Slavery (1856). 

• Dr. W. G. Simms of South Carolina, The Morals of Slavery 
(1837). This was an answer to the writings of Miss Martineau and 
other persons. 

* George S. Sawyer, Institutes of Slavery (1859). 

® F. R. Dew (professor in William and Mary’s College), .kernels 
of the Debates in the Virginia Legislature (1833). 

® See The Pro-Slavery Argument, containing “ Memoir on 
Negro Slavery,” by Chancellor Harper ; " Letters on Slavery " 



In order to make an adequate defence of slavery, 
it was found necessary to abandon certain ideas 
that had been conspicuous during the Revolution- 
ary period. The Declaration of Independence, 
with its assertion that all men are created equal 
and are endowed with certain inalienable rights, 
was not in harmony with the practice of slavery, 
and must be repudiated or explained away. This, 
however, proved no barrier to the new move- 
ment, for the defenders of slavery rejected the 
principles of the natural-right school of political 
theory, and constructed their political system on 
another basis. 

In the first place, the proposition that all men 
are created equal was subjected to the most severe 
criticism on the part of the pro-slavery school. It 
was maintained that unless taken in some very 
qualified sense, such an assertion was incapable of 
proof. Calhoun declared that ; “ Taking the prop- 
osition literally, there is not a word of truth in it. 
It begins with, ‘ all men are born,’ which is utterly 

(Letter to Thomas Qarkson), by Governor J. H. Hammond of 
South Carolina (1845); also Simms, op. ctC. and Dew, op cit.; Lec- 
tures on the Philosophy and Practice of Slavery, by William A. Smith 
(Randolph-Macon College, 1857); Studies on Slavery, by John 
Fletcher (Louisiana, 1852); Slavery in the United States, by J. K. 
Paulding (1836); Slavery ordained of God, by F. A. Ross (1859); 
American Slavery, by Rev. Samuel Seabury (1861). Many interest- 
ing contributions to this subject are contained in The Industrial 
Resources of the South, by J. D. B. de Bow (1853), a collection of 
articles published in De Bends Magazine. See also The Southern 
Literary Messenger, 



untrue. Men are not born. Infants are born. 
They grow to be men.” * He found it difficult to 
see how so unreasonable an idea could ever have 
become current among reasonable men. Governor 
Hammond alluded contemptuously to the “ much- 
lauded but nowhere accredited dogma of Mr. 
Jefferson that all men are born equal.” ^ Simms 
said that this phrase was “ a finely sounding one, 
significant of that sentimental French philosophy 
then so current.”* When the Fathers spoke of 
equality, what they really had reference to, was 
the equality of the American states among other 
states of the world, or at the most the equality 
prevailing among white men. 

Not only are men created unequal, such was 
the line of reasoning, but this very inequality must 
be regarded as one of the essential conditions of 
human progress. Calhoun did not hesitate to 
assert that the advance of human civilization 
depends upon the inequality that exists among 
men. There have always been and there must 
always be, he argued, a front and a rear rank in 
the onward march of humanity ; to reverse or con- 
found this order, would check the advance of the 
race. This fundamental fact that individuals or 
races are unequal, is not an argument against, but 
rather in favor of, social and political advancement.* 
Others maintained that inequality is the necessary 

> rFofii, IV, 507-512. '/jiV. 251. Cf. Fletcher, «/. 399. 

* Pro~Slmtry Argument, no. ‘ Works, 1 , 57. 



principle upon which all government rests; that 
inequality is the source of all harmony in the uni- 
verse; even that the souls of men in the future 
state must be unequal.^ In short, the doctrine 
that all men are created equal was wholly repudi- 
ated as a basis for political theory. Emphatic 
denial was entered on grounds of both fact and 
philosophy. From either point of view, it was re- 
garded as untenable and absurd. 

Again, the doctrine of natural rights — that every 
individual possesses certain rights which are not 
derived from government, and of which he cannot 
justly be deprived by government — was either aban- 
doned entirely or interpreted in such a way as to 
lose all application to the institution of slavery. 
The repudiation of this theory of natural rights 
was most emphatically made by the famous Dr. 
Cooper of South Carolina.* He attempted to 
show that even on the hypothesis of an original state 
of nature it could not be assumed that all men 
are endowed with the same rights. Force, either 
of body or of mind is, said he, the basis of all 
rights. “ The universal law of nature is force. By 
this law the lower animals are subdued to man, and 
the same law governs the relations between men.”® 
In fact, there is no law of nature of the character 

' Fletcher, op. cit. 407. 

* Lectures on the Elements of Political Economy (1826). With 
this compare his Essay on the Foundation of Civil Government, 
(1787); reprinted 1826. * Hid. 56. 



conceived by such thinkers as Grotius, Pufendorf, 
and Vattel. The so-called law of nature, and with 
it the natural rights claimed under such a law, con- 
sist merely of “ systems fabricated by theoretical 
writers on a contemplation of what might usefully 
be acknowledged among men as binding on each 
other.” 1 What is right, in the proper sense of the 
term, is only that which is granted and protected 
by society. That which society refuses to acknowl- 
edge is not a right and has no character of a right. 
In other words, there is no body of natural rights 
obtained independently of all government, but only 
those rights which the society considers it expedi- 
ent to grant. 

Calhoun, also, scouted the idea of a state of 
nature, natural rights, and a social contract. He 
believed that the “ state of nature ” is purely hypo- 
thetical and fictitious, and he placed no confidence 
in the conclusions drawn from such an hypothesis.® 
In his opinion, government is not to be regarded 
as a mere matter of choice, but must be considered, 
on the contrary, as a fundamental necessity, organ- 
ized and maintained in obedience to a purely nat- 
ural instinct of man. There is consequently no 
need to presume a state of nature, and reason from 
this to the formation of political institutions. The 
whole structure erected on the foundation of the 
natural-right theory seemed to him to be worth- 

' Lectures on the Elements of Political Economy, 54, 

* See on this point Chap. VI. 



less speculation, unnecessary to consider when once 
the weakness and imperfection of the corner-stone 
is discovered. For his part, he was determined to 
disregard the individualistic political theory of the 
seventeenth and eighteenth centuries, and to con- 
struct his political science upon another founda- 
tion. There was no hesitation or uncertainty in 
his attitude ; he did not attempt to reconcile diver- 
gent views; he simply rejected outright the fun- 
damental tenets of the old school. 

Not all of the defenders of slavery, however, 
were willing to part with “the rights of man.” 
There were many and ingenious interpretations of 
the law of nature, intended to bring it into accord 
with the practice of slavery. Thus it was admitted 
in one instance that there are natural rights with 
which every human being is endowed; but a closer 
examination of these rights shows that they con- 
tain nothing to interfere with the status of slavery. 
Among these natural rights it is found that one 
has in early life “ the right of such absolute control 
by others as that his will may retain its self-acting 
power unimpaired." It also appears that an adult 
is entitled to have such a political organization as 
will afford “ that system of appliances which de- 
velops and matures the self-acting power of his 
will.” Now, the negro in slavery is under an 
institution which will allow the fullest development 
of the “ self-acting power of his will, ” and thus 
may be said to have the full possession of his 


.latural rights.^ Another writer declared that there 
are certain inherent and inalienable rights, but at 
the same time denied that liberty and property are 
among these. These rights are subject, he reasoned, 
to the general good, and occasion may demand their 
sacrifice on the part of some members of society.^ 

It is evident from these authorities that the doc- 
trine of natural rights was either wholly repudiated, 
or so interpreted as to obviate any objection to 
slaveholding. This did not necessarily mean that 
the principles of democracy were entirely given up, 
but rather that the principles on which the Fathers 
had thought democracy must be based, were falla- 
cious and inadequate. It was believed that such 
doctrines were not essential to the existence of 
republican government, and that they might better 
be made less prominent in the new political science. 

Having rejected the idea that all men are 
created equal, and possess from the hour of their 
birth certain inalienable rights, it was asserted that 
the status of the individual should be determined 
by his ability or capacity. John C. Calhoun main- 
tained that the theory of the equal right of all men 
to the same degree of freedom is contradicted by 
the most evident and unmistakable facts. Liberty, 
he reasoned, is not inborn in men ; it is not a natu- 
ral inheritance, given to every man, but a condition 
dependent upon a high degree of human develop- 

' Wm. A. Smith, Philosophy and Practice of Slavery (1857). 

’ A. T. Bledsoe, An Essay an Liberty and Slavery (1856). 



ment. Liberty is the “ highest reward bestowed 
on mental and moral development, combined with 
favorable circumstances." ^ It is not a status into 
which men are born, but one for which they must 
struggle, and which can be reached only by those 
who are most highly endowed. Liberty is not 
given to man at the beginning of his career, but is 
the distant goal which he reaches at the end. The 
same idea was clearly stated by Bledsoe in his Es- 
say on Liberty and Slavery, where he urged that 
there is no natural and inherent right to political 
power or privilege, except that arising from 
superior fitness or capacity. He denounced the 
“French idea” that liberty may be obtained through 
formal equality, and held that, on the contrary, 
liberty depends on equality of intelligence and 
virtue. “The most illiterate peasant," said he, “may 
at a glance grasp the idea of equality ; the most 
profound statesman may not, without much care 
and thought, comprehend the nature of liberty.”* 
Particular emphasis must be placed on this doc- 
trine, for it was just at this point that the pro- 
slavery and the anti-slavery party sharply diverged. 
It was a part of the Abolitionist argument that 
freedom is inborn in all men, is an essential 
part of their nature, something of which they can- 
not justly be deprived. Calhoun and his followers 
maintained, on the contrary, that liberty is not born 
with man, not a natural and inherent right, but 
1 }Vi>ris, sil. * Op. cii. 129. 


a privilege, a reward of which all are not equally 
worthy, for which individuals or races must dem- 
onstrate their fitness. This fundamental difference 
between the doctrine of the pro-slavery party and 
that of the Revolutionary Fathers and the Aboli- 
tionists, is deserving of careful attention, for it 
is the clew to the philosophic controversy between 
the opposing schools. It marks the scientific part- 
ing of the ways. 

Assuming, then, that liberty is not a gift impar- 
tially bestowed by nature on all men, but only upon 
the few, the pro-slavery party declared that the 
negro race is unworthy of liberty and incapable 
of self-government. The contrast between the 
white man and the black man, in all those points 
that are characteristic of civilization, was a staple 
item of argument. It was asserted that the negro 
“ stands at the lowest point in the scale of human 
beings.” 1 If human beings at all, they are 
of the most degraded species.^ The negro is not 
merely “a lamp-blacked white man debased by 
slavery,” but a being essentially and fundamen- 
tally inferior in mind and body. Contemporary 
authorities in the scientific world were invoked 
to show that the racial characteristics of the negro 
stamped him as an inferior order of man.® It 

1 “Nature and Destiny of the Negro,” by J. C. Nott (1850), in 
De Bow, Industrial Resources, II, 308. 

2 Ibid. II, 203. 

« Ibid. II, 308. 


was even urged that the negro could not be a 
descendant of Adam, but must be derived from 
some other distinct and inferior species.^ More 
common was the assertion that the negro is de- 
scended from Ham, upon whose race both God 
and nature have set a curse, as shown by the 
concurring authority of the Scriptures and natural 

Not only was it asserted that the negroes were 
manifestly inferior, but the ground was also taken 
that they were incapable of ever becoming, even 
approximately, the equal of the white race. It was 
said of the negro races that “ no moral or physical 
agencies can redeem them from their degrada- 
tion ; ” to attempt to relieve them from their 
natural inferiority is idle in itself, and may be mis- 
chievous in its results. The negro must, there- 
fore, be regarded as an essentially inferior race, 
and, moreover, as incapable of rising very far or 
very soon from this natural and divinely appointed 
status of degradation.^ 

It follows, then, that the black man cannot be 
considered as a fit subject for the exercise of civil 

1 Ibid. 203, and III, 315-329. Article on Negroes, by Dr. Cart- 
wright. Cf. Negro-mania, by John Campbell (1851). There was 
at this time considerable discussion as to the multiple origin of the 
human race. 

* Sawyer, Institutes of Slavery, n6. 

® “ The negro cannot be schooled, nor argued, nor driven into h 
love of freedom. His intellect cannot be schooled, nor argued, noi 
driven into a love of freedom.” De Bow, op. cit. II, 204. 


or political rights. Governor McDuffie said that 
the negroes are “ utterly unqualified, not only for 
rational freedom, but for self-government of any 
kind,” and this fairly expressed the sentiment of 
the slavery party. If the negro is unfit to govern 
himself, there can be no injustice in governing him 
without his consent. To do for him what he could 
not do for himself, and what must be done by some 
one, is not to commit an injustice, but to confer a 
benefit. Hence, the slave is not to be regarded 
as a hapless victim of oppression ; he is under no 
despotic power ; there are laws which protect him, 
in his place, as inflexible as those which his pro- 
prietor is required to obey in his place. “ Provi- 
dence,” said Hammond, “has placed him in our 
hands for his good, and has paid us from his labor 
for our guardianship.” ^ 

In brief, the contention was that if there are 
two races existing side by side, and the inferior 
race is incapable of self-guidance and self-govern- 
ment, this race must be taken in hand and gov- 
erned by the superior. It had also to be shown 
that the institution of slavery did no more than 
what was necessary for the regulation of the lower 
race ; in other words, that the relation between the 
races was that of guardian and ward, and not that 
of exploiter and victim. 

* Hammond, op. cit. 274. Cf. Bledsoe, op. at 1 15 ; Samuel Sea- 
bury, op. cit 91. Others held slavery to be the result of sin; cC 
Fletcher, op. cit 



Such reasoning, however, was only a defence 
of slavery, and the advocates of the cause were 
unwilling to rest their case at this point. They 
attempted to show, not only that slavery was not 
an evil, but that it was a positive good ; that it 
was not only tolerable under certain unfortunate 
conditions, but essential to the highest type of 
society. Inspired by this motive, Calhoun declared 
in Congress that “there has never yet existed a 
wealthy and civilized society in which one portion 
of the community did not, in point of fact, live on 
the labor of the other.” ^ He maintained that the 
performance of menial duties is wholly inconsist- 
ent with the life of a freeman. “No Southern 
man,” said he, “ not even the poorest or the low- 
est, will, under any circumstances, submit to per- 
form (either of) them. He has too much pride for 
that, and I rejoice that he has.”^ Fortified by 
this belief, Calhoun was ready to say that the 
institution of slavery “forms the most solid and 
durable foundation on which to rear free institu- 
tions ” ; ® and Governor McDuffie could declare 
that “ domestic slavery, instead of being a politi- 
cal evil, is the corner-stone of our republican edi- 
fice.” With the same idea in mind, Alexander H. 
Stephens, on the verge of the Civil War, proclaimed 
that slavery, rejected by the Revolutionary Fathers, 

1 Works, II, 631 (1837). 

* HU. IV, 505. 




“ is become the chief stone of the corner in our new 
edifice.” ^ 

The pro-slavery party reasoned that in a society 
where all are equally free, and share alike in political 
privileges, some of the citizens must of necessity 
be occupied mth the performance of menial duties. 
But one who engages in such labor has not the 
leisure necessary for political observ^ation and reflec- 
tion, and hence is unqualified for the performance 
of the duties that devolve upon him. Consequently, 
the average of the political society is greatly lowered 
by the presence of this body of citizens, who are 
of necessity unworthy and unfit. Whenever any 
considerable proportion of this element is present, 
the otherwise pure republicanism is defiled and its 
possibilities of development are seriously limited. 
On the other hand, in a community where the 
drudgery of society is performed by a particular 
class devoted to that purpose, and excluded from 
participation in political rights, the remaining part 
of the community may be formed into a democracy 
of the very highest type. There will be fewer 
members of the democracy, but they will be of a 
superior grade ; they will enjoy the necessary leisure 
for the cultivation of political affairs, and so will be 
able to maintain a much more perfect and efficient 
kind of a democracy than would otherwise be 
possible. The members of such a democracy will 

^ Speech at Savannah, Georgia (March 21, l86l), in Moore’s 
Rebellion Record, I, D, 44-^8. 



be men of great capacity for self-government, and 
among them the principles of free government can 
be carried out to an extent impossible among a 
mixed population containing a large element of 
inferior stock. For example, where a slave class is 
found, there is no necessity for the existence of an 
order of nobility or an hereditary monarchy, since 
the lower class is wholly under the control of the 
higher, and in the higher class itself such distinc- 
tions of rank are not necessary. In a mixed politi- 
cal society some such device as this is required in 
order to impress the masses with the dignity and 
majesty of the government But where all the 
undesirable and unfit elements have been eliminated 
from the political society, these artificial devices 
are unnecessary and may be abolished. The ruling 
class exists by virtue of natural capacity alone, and 
within that class there may safely be established 
the most liberal type of a democracy. Here may 
be seen “ the perfect spirit of equality so prevalent 
among the whites of all the slaveholding states.” ^ 

This argument as to the function of a slave class 
in a democracy is, it will be observed, almost identi- 
cal with that made by Aristotle in his Politics; and 
it was to his political theory that the slavery apolo- 
gists returned.® In proof of the theoretical justice 

* Dew, Tht Pro-Slavery Argument, 461. 

^ Calhoun recommended Aristotle as among the best writers on 
government. Letter to A. D. Wallace (1840), in the Correspona 



of slavery, his reasoning was repeated, and the 
example of the Greek democracies was cited to 
show the desirability of such a social and political 

In fact, the whole question of the relative advan- 
tages of slave and free society was discussed in all 
its different phases. The conditions in the cities of 
the North and in England were contrasted with the 
state of affairs in the South, and conclusions drawn 
to the decided advantage of the latter. The rule of 
the capitalist and his indifference to the poverty 
of the masses was compared with the benevolent 
paternalism exercised over the negro by his master; 
and the free laborer was said to be in a much more 
miserable state than the slave. This kind of argu- 
ment was reenforced by illustrations drawn from 
material afforded by the state of the laboring classes 
in England and by the frequent denunciations of 
contemporary society by the socialists. It was 
often asserted that, on the whole, the condition of 
free labor was inferior to that of slave labor, and that 
if anything needed reform, it was the condition of 
the white slaves, “ tantalized with the name of free- 
dom, to which their condition gives the lie.” The 
assertion was made that in every way — economi- 
cally, socially, morally, and politically — a slave 
society is superior to a society built on a foundation 
of free labor. Apologies were no longer made for 
slavery, but it was pointed to with feelings of pride, 
and was really considered among intelligent leaders 


of opinion as the “ comer-stone of our republican 
edifice,” the very best foundation possible for a civil- 
ized society. Within four years of the Thirteenth 
Amendment, Alexander H. Stephens rejoiced in the 
discovery of a new type of organization — slavery 
— and declared the new government the first in 
the world based upon “ this great physical, philo- 
sophical, and moral truth.” Other societies had 
been built on the slavery of the same or similar 
races ; but now, for the first time, a foundation was 
laid, perfectly in accord with the laws of nature, 
since nature, in this instance, has fitted the enslaved 
race for that particular condition. And he further 
asked, “ May we not, therefore, look with confidence 
to the ultimate universal acknowledgment of the 
truths upon which our system rests ? " * 

The climax or rather the anti-climax of this style 
of reasoning is found in the writings of the radical, 
George Fitz-Hugh.^ His work on Sociology for the 
South, or the Failure of Free Society, 1854, is con- 
sidered here, not because typical of the thought of 
the pro-slavery school, but as an illustration of the 
extremes to which their argument might be and in 
this case actually was forced. 

Fitz-Hugh favored the abandonment of any sort 
of philosophy as applied to government. “ Philoso- 
phy,” he said, “ will blow up any government that is 

1 Op. cit. 

* By the same author. Cannibals All, or Slaves without Masters 
(1857). For a sketch of his life, see Appleton, Eneyelopadia. 



founded on it. . . . If we would have our people 
normal and our institutions permanent, we should 
repudiate our political abstractions and adopt 
religious truths in their stead.” ^ Notwithstanding 
this denunciation of philosophy, he proceeded to 
develop a system of his own. A fundamental part 
of his creed was the doctrine that liberty is not, as 
generally supposed, a good. Liberty, said he, is 
an evil which government is intended to correct. 
This is the object of political society, and all gov- 
ernment is really slavery. “ Sin,” he said, “ began 
with the desire for liberty and the attempt to 
attain it in the person of Satan and his fellow- 
angels.” ^ He declared that as civilization ad- 
vances, liberty recedes, since “ what is needed is 
good government and a plenty of it — not liberty.” 
The idea that liberty is good for men, he ridiculed 
as the “ most false and foolish that ever entered 
the human mind. The only free people in the 
world are the Digger Indians of the valley of the 
Great Salt Lake and the Australians of New 
Holland. They know nothing of government, 
of society, of castes, classes, or of subordination 
of rank ; each man digs for worms and climbs for 
birds’ eggs on his own hook; they are perfectly 
free, famished and degraded.” ® 

Slavery he considered as the best possible basis 
for any society. Moreover, Fitz-Hugh discovered a 
resemblance between the philosophic bases of slav- 
1 Sociology, 114 - 115 . * Ibid. 170 . * Ibid. 



ery and socialism, which the advocates of neither 
of these systems would be willing to admit. In 
common with the socialists he attacked the principle 
of free contract, considering its results as cruel as 
the war of the sword, or theft, robbery, and murder. 
A Southern plantation was an ideal type, he thought, 
of a socialistic society. The feelings and interests 
of the masters prevent undue pressure on the 
laborers ; they are protected from the evils of 
competition and are assured employment and 
support. His only objection to socialism was, 
“ that it will not honestly admit that it owes its 
recent revival to the failure of universal liberty and 
is seeking to bring about slavery again in some 
form.” ^ No effective combination of labor can be 
made, said Fitz-Hugh, until men are willing to 
surrender their liberty and subject themselves to a 
despotic head or ruler — “ this is slavery, and 
toward this socialism is moving.” This theory of 
Fitz-Hugh was not, it may be said, the philosophy 
of the great body of the pro-slavery school and 
cannot be taken as representative of them. His 
extremely radical ideas illustrate, nevertheless, one 

1 Ibid. Fitz-Hugh favored providing for a system of entailment 
of property, “We need not fear the mad-dog cry of aristoc- 
racy. • . . We have the things, exclusive hereditary property and 
aristocracy, in their utmost intensity; let us not be frightened at the 
names.*’ Fitz-Hugh was not alone in his radical theory. Governor 
Hammond, in a letter to Calhoun (1850), expressed the belief that 
** free government and all that sort of thing has been a fatal delu- 
sion and humbug from the time of Moses.” Correspondence^ p. 1212 


phase of the intellectual movement and as such arc 
worthy of examination in the same spirit in which 
the theory of the radical Abolitionists is studied. 

Such, then, was the character of the theory by 
which slavery was defended. The individualistic 
philosophy of the eighteenth century and of the 
Revolutionary period was rejected. The doctrine 
that all men are created equal was denied, and the 
possession of inherent and inalienable “ natural 
rights” was disputed or the force of the doctrine 
weakened by interpretation. It was shown that 
political rights and civil liberty cannot justly be 
demanded by all, but belong only to those who 
possess intellect, morality, and political capacity. 
If this is true, then an inferior race or class unfitted 
for political life may properly and justly be held 
in a state of servitude by a class or race that is 
politically capable ; and this servitude may properly 
extend to the entire abolition of civil and political 
rights, even of any legal status whatever. Such a 
system is not undemocratic, but on the contrary 
tends to foster the spirit of liberty and to develop 
free institutions to the highest degree of perfection, 
since the lower classes are eliminated from politics 
and the political people are composed of those of 
the highest grade and most capable of administer- 
ing democratic government. The complete servi- 
tude of a lower class to a highly democratic ruling 
class is not only possible, as the ancient Hellenic 


democracies conclusively show, but this is on the 
whole the most advantageous kind of a governmen- 
tal-social structure that can be devised, especially 
when the slaves are taken from an inferior race, 
naturally unfitted for participation in political life. 

As the Abolitionist crusade was a part of a world- 
wide humanitarian and philanthropic movement, so 
the pro-slavery theory had certain features in com- 
mon with an intellectual movement of the time. 
The characteristics of the slavery apologists 
were those of the natural scientists rather than 
those of the philanthropists.* The leaders in the 
defence of the slave system regarded human 
life as essentially a struggle in which the fittest 
survive, and thought that in spite of certain 
elements of cruelty in this process the system 
was on the whole beneficent in its results. They 
believed that they were among the fittest, holding 
their position by the authority of the inexorable 
fiat of nature, and they were not primarily inter- 
ested in the elevation of the lower classes, or in the 
amelioration of their condition. Abolitionism, they 
regarded as sentimental, idealistic, and imprac- 
ticable, classing it with socialism, spiritualism, free- 
thought, anti-masonry, ” teetotalism," and other 
“ isms ” of the day. They justified themselves as 
practical men, viewing with impartial eye the actual 

* The method of argument employed by the slavery apologists 
was not, however, the same as that of the natural scientists. The 
pro-slavery reasoning was, to a great extent, a priori and deductive. 


ind inevitable conditions of social life and prog- 
ress, perceiving the difficulty of reversing the 
operation of the laws of nature, and little disposed 
to tamper with movements in that direction. They 
regarded slavery as a social necessity decreed by 
the laws of nature, and they looked upon any at- 
tempts to alter this state as wholly idealistic and 

In conclusion, a few words may be said by way 
of summarizing the discussion. It is clear that at 
the bottom of the controversy between the radical 
Abolitionists and the pro-slavery party, there was a 
fundamental difference of opinion as to the nature 
of human liberty. The abolitionists thought that 
liberty is the birthright of all men ; the defenders 
of slavery thought it the possession of those only 
who are fit. The Abolitionists thought that as far 
as rights are concerned, all men are created and 
should continue to be equal ; and consequently they 
were bitter in their denunciation of the denial of 
these rights ; the opposite party thought that rights 
do not belong to men simply as men, but because of 
the superior qualities, physical, intellectual, moral 
or political, which are characteristic of certain in- 
dividuals or races. The Abolitionists argued, in 
accordance with their belief, that the negro ought to 
be put in possession of the original and natural 
rights which are justly his, and of which he is wrong- 
fully deprived. The slaveholders contended that 



the negro, being an inferior order of man, should 
be kept in a state of complete subjection for his own 
and for the general good. Thus in both theory 
and practice, there was an almost irreconcilable 
difference between the two parties. 

Between the conservative anti-slavery element 
and the slave party there was a less marked 
contrast. Although these opponents of slavery 
declared that all men are born with certain rights, 
they did not demand complete equality for the 
races. It was therefore recognized that there must 
be a certain restraint of certain classes under cer- 
tain conditions, and no demand was made for equal 
liberty or for immediate liberty for all members 
of the community. Between this group and the 
slavery party, the question was really one as to how 
far individual conduct may be regulated and for 
how long. The defenders of slavery insisted that 
the negro is entitled to no rights at all, politically 
speaking, and moreover that the nature of the 
black man is such as to make this status permanent. 
On the contrary, the anti-slavery party declared 
that a certain body of rights should be granted to 
every one — not necessarily full participation in the 
exercise of political functions, but at least some- 
thing in advance of complete and permanent sub- 
jection to the will of a master. Upon this point 
the two parties differed sharply. Had the pro- 
slavery party been willing to grant the negro even 
a modicum of civil rights, and to concede and 


make provision for his capacity for future exercise 
of further rights, the gulf between these positions 
might have been spanned. 

A further difference of opinion was that con- 
cerning the influence of slavery upon society in 
general, and democratic institutions in particular. 
The apologists for slavery believed that such a 
system was economically advantageous, socially 
elevating, and that politically slavery made possi- 
ble the very highest type of democratic govern- 
ment ; in brief, that a slave society was superior at 
almost every point by which civilization may be 
estimated. The opponents of slavery regarded the 
practice as wasteful from the economic point of 
view, demoralizing socially, and with special em- 
phasis urged that the existence of a system of slav- 
ery is incompatible with the maintenance of demo- 
cratic institutions, since the characteristic qualities 
which make democracy possible are diametrically 
opposite to those fostered under slavery. One side, 
then, regarded democracy as properly applicable 
to the whole society, the other as a relation within 
a certain class not inclusive of the whole society. 
This difference corresponds closely to that already 
considered; namely, as to whether liberty is the 
birthright of all, or the reward of the fittest. 

From the standpoint of modern political science 
the slaveholders were right in declaring that 
liberty can be given only to those who have politi- 
cal capacity enough to use it, and they were also 



right in maintaining that two greatly unequal races 
cannot exist side by side bn terms of perfect 
equality. But the conclusion drawn from these 
premises was by no means a legitimate one. It did 
not follow that because the negro was not the 
equal of the white man, and could not well exercise 
the same political rights, that therefore he should 
be deprived of all rights whatever. Because he 
was not entitled to equal political rights, it did not 
follow that he should not even have a personality 
in the eyes of the law. This was the fatal non 
sequitur that led to the violent abolition of slavery 
in the throes of a terrible civil war. But, on the 
other hand, the Abolitionists were guilty of an 
equally rash generalization in assuming as they 
did at the close of the war, that because the negro 
is entitled to some rights, he should immediately 
and without any preparation be placed in full 
possession of the highest political rights. As the 
slavery party blundered in giving the negro no 
rights, the radical Abolitionists blundered in giving 
him, at one stroke, all rights. 



The question of national organization is the most 
difficult problem that the United States has yet 
been called upon to solve. Possessing all the char- 
acteristics commonly attributed to nations, — com- 
mon race, language, religion, geographical unity, 
— the full expression of this nationality met with 
stubborn resistance, and was realized only after the 
bloodiest war of the century had been fought. 
Even in colonial days there was evident the 
strongest reluctance to form any union at all bind- 
ing in nature. During the enthusiasm of the 
Revolutionary movement a decidedly national atti- 
tude was assumed, but in the Articles of Confeder- 
ation this was abandoned. In the formation and 
adoption of the Constitution there was a reaction in 
which the national spirit was conspicuous. From 
the very first days of the Repubbc, however, there 
was marked divergence of opinion in regard to the 
nature of the new Union. The Eleventh Amend- 
ment, the Kentucky and Virginia Resolutions, the 
Hartford Convention, Nullification, — all were evi* 
dences of the general difference of opinion as to 



ihe character of the federal Union. With the rise 
of slavery to the position of a national issue, the 
defenders of this institution made states-rights a 
part of their platform. Thus the unnational doc- 
trine was associated with a particular section of 
the country and with the life of a particular institu- 
tion. It had a local habitation and a name. The 
conflict accordingly became more and more des- 
perate, until the final appeal was taken to the 
arbitrament of arms. 

The purpose of this chapter is to describe and 
analyze the political theory underlying the various 
doctrines as to the nature of the Union developed 
during this period. The compromise theory prev- 
alent at the time of the adoption of the Con- 
stitution, the states-rights theory developed by 
Calhoun, and the nationalist doctrine in the legal 
form given it by Webster, and in the more scien- 
tific shape later assumed, form the large groups 
under which these doctrines may be classified and 

The question as to the nature of the American 
Union was an important one, theoretically and 
practically, in the days when the Constitution was 
pending. The new government involved, it was 
seen, a closer union than that under the old Con- 
federation, and yet it was not desired to form a 
centralized state, a “consolidated republic.” The 
Confederation was too closely allied to anarchy ; a 
centralized state, it was feared, would be equiva- 


lent to tyranny. This difficulty was discussed by 
the Federalist and was explained with such con- 
summate skill as to constitute a satisfactory 
solution for the political problem then immedi- 
ate and pressing. The United States was the first 
type of the modern " Bundes-Staat,” and the Fed- 
eralist was breaking new ground ; nevertheless, the 
theory then developed profoundly influenced the 
thought of America, and also at a later date that of 
Continental countries. The new Union was vari- 
ously termed a “ Compound Republic,” a “ Con- 
federate Republic,” and a “ Confederacy, ” an 
assemblage of societies, or an association of two or 
more states into one state. “ The extent, modifi- 
cation, and objects of the federal authority,” it was 
explained, “ are mere matters of discretion. So long 
as the separate organization of the members be not 
abolished ; so long as it exists by a constitutional 
necessity for local purposes, though it be in per- 
fect subordination to the general authority of the 
Union, it would still be in fact and in theory an 
association of states or a confederacy.” ^ 

The nature of the new Union, it was held, is 
neither wholly national nor wholly federal, but 
contains both national and federal elements in 
combination. Considering the foundation of the 
government, it is federal, since the Constitution 
must be ratified by the several states. In regard 
to the organization of the legislative power, the 

1 Ftderalisl,'St>. 9 . 



new Union is partly national and partly federal, 
one House resting on a national and the other on 
a federal basis. The executive is also constituted 
in a mixed federal and national way, since the 
electoral vote is distributed partly in accordance 
with the principle of state equality, and partly 
according to population. Viewing the operation 
of the government, it is seen to be national and 
not federal, inasmuch as it acts directly on indi- 
viduals and not through the states. In the extent 
of its powers, however, the Union is federal, be- 
cause its jurisdiction is limited to specific objects, 
and all else is left to the states. Lastly, as re- 
spects the amending power, it is found that the 
government is partly federal and partly national, 
since neither the principle of unanimity nor that 
of proportionality obtains exclusively. It thus 
appears that the government, as organized in the 
Constitution, must be regarded neither as a pure 
confederacy nor yet as a “consolidated republic”; 
but should really be placed in a class by itself. It 
is a new type of government peculiar to American 
conditions — a form at once national and federal, 
happily combining the characteristics of both. 

In harmony with this idea of the mixed charac- 
ter of the Union, was the theory that sovereignty 
is capable of division and actually is divided in the 
United States. This doctrine was current at the 
time when the Constitution was adopted, was gen- 
erally accepted imtil the days of Calhoun, and still 


remains the theory of the federal courts. In the 
letter of the Constitutional Convention to Congress, 
it was expressly declared that “ all rights of inde- 
pendent sovereignty ” could not be secured to the 
states under a system of federal government.^ In 
the Federalist, also, the division of sovereign power 
was frequently suggested. Thus it was said that 
the old Confederation attempted to accomplish 
impossibilities, “to reconcile a partial sovereignty 
in the Union, with complete sovereignty in the 
states ; to subvert a mathematical axiom by taking 
away a part, and letting the whole remain.” ^ It 
was shown that in Rome “the legislative power 
in tl^e last resort resided for ages in two different 
bodies, which were distinct and independent ; ” * 
that is, the Patricians and the Plebeians. It was 
asserted that the new Constitution does not reduce 
the states to the rank of provinces, but leaves them 
in possession of “certain exclusive and very impor- 
tant portions of sovereign power.”* The states 
will still hold “ all the rights of sovereignty which 
were not by that act exclusively delegated to the 
United States.”® In a consolidated system the 
local authorities are wholly subject to the central 
government; but in the proposed Union the “local 
authorities form distinct and independent portions 
of the supremacy, no more subject to the general 
authority than the general authority is to them 

' Journal of Congrets, XII, 165. * No. 4. 

• No. 32. 4 No. 9. » No. 31. Cf. No. 82. 


within its own sphere.” ^ The states may not be 
fully sovereign, but they have at least a residuary 
sovereignty. There are, in fact, many sovereignties 
existing side by side. The real sovereignty rests, 
however, not with state or federal government, but 
with the “people.” “The ultimate authority,” it 
is said, “wherever the derivative may be found, 
resides in the people alone.” ^ But who the 
“ people ” were, whether of the several states or 
of all the states taken collectively, the Federalist 
was careful not to answer. This was a question 
left for coming generations. 

It is a fair conclusion, then, that at the time when 
the Constitution was adopted, the prevalent opin- 
ion was that in some way or other sovereignty was 
being divided between the states and the Union.® 
It is a mistake to suppose that the states thought 
they were renouncing all of their sovereignty, or 
that they thought they were giving up none of 
it. There were, of course, some who believed 
in one or the other of these two ideas; but in gen- 

1 No. 39. “ Nos. 33, 45, 82. 

® See John Dickinson, “ Letters of Fabius,” p. 179; Noah Web- 
ster, “An Examination into the Leading Principles of the Federal 
Constitution/’ p. 46 (both the foregoing are in Ford’s Pamphlets ) ; 
Elliot, Debates^ II, 129, 143, 356, John Adams said (1790): “Our 
new government is an attempt to divide a sovereignty— a fresh 
essay at imperium in imperio. It cannot, therefore, be expected 
to be very stable or very firm.” Works, IX, 564. In this connec- 
tion see a discussion on “ Social Compact and Constitutional Con- 
struction,” by A. C. Mcl-aughlin, in The American Historical Pevitto 
(April, 1900). 


eral it was thought that a compromise was being 
made between states and Union, and that a divi- 
sion of sovereignty was involved in this. If the 
question were ever raised as to where the ultimate 
controlling power in the community is located, the 
answer was, "with the people,” without particular 
inquiry as to just what was meant by this.^ In 
the Revolutionary days “ people ” had stood for 
the opposition to the king, and this old idea was 
used to conceal the difficulty involved in a wholly 
different situation. 

This idea of the divisibility of sovereignty was 
early enunciated by the United States courts, nota- 
bly in the case of Chisholm v. Georgia (1792). The 
declaration was made that “ the United States are 
sovereign as to all the powers of government actu- 
ally surrendered. Each state in the Union is sov- 
ereign as to all the powers reserved.”^ Succeeding 
decisions gave expression to the same theory that 
sovereignty is capable of division and actually has 
been divided under the American system. The 
opinions of the courts were permeated with the idea 
of the division of sovereign powers between the 
states and the Union.® 

1 Cf. James 'Wilson’s argument in the Pennsylvania Convention 
on this point, Elliot, Debates, II, 504. 

1 2 Dallas, 435. 

* Cf. Ware v. Hylton, 3 Dallas, 232 (1796) : “ The several states 
retained all internal sovereignty and . . , Congress properly pos- 
sessed the great tights of external sovereignty.” Cherokee Nation 
V. Georgia, 5 Peters 26: "They have in Europe sovereign and 


One of the staunchest champions of the theory 
of divided sovereignty was James Madison. He 
maintained that the American government was 
neither federal nor national; it was sui generis, 
federo-republican, unique in the nature of its con- 
struction, a “ nondescript to be tested and explained 
by itself alone,” ^ an illustration of the adaptability 
of republican institutions to new and difficult con- 
ditions. To his mind nothing was clearer than 
the proposition that sovereignty may be divided. 
If it cannot, he urged, then “ the political system 
of the United States is a chimera, mocking the vain 
pretensions of human wisdom.” ^ Or again, “ It 
is difficult to argue intelligibly concerning the com- 
pound system of government in the United States 
without admitting the divisibility of sovereignty.” ® 
In this case it is necessary “ to abandon abstract 
and technical modes of expounding and designat- 
ing its character,” and regard the Constitution as a 
“system hitherto without a model.” ^ He found 
that the sovereignty was divided between the 
states on the one hand and the Union on the 
other, so that the whole society, as he said, consists 
in a number of partial sovereignties.^ Moreover, he 
charged that the main pillar of nullification was 

demi-soveteign states, and states of doubtful sovereignty. But 
this state, if it be a state, must be a grade above them all.” See 
McCulloch V. Maryland, 4 Wheaton, 316; Worcester v. Georgia, 
6 Peters, 591-592. 

I Works, IV, 420-421. * Hnd. IV, 61. 

» Ibid. IV, 394. ‘ Ibid. IV, 420-421. “ Ibid. IV, 393. 

26 o 


the assumption that sovereignty is a unit at once 
indivisible and inalienable.^ 

Up to the time when the theory of Calhoun be- 
came influential, the characteristic American doc- 
trine was that in the United States, whatever 
might elsewhere obtain, the sovereignty had been 
divided into several portions without the destruc- 
tion of its life principle. Replying to Calhoun’s 
argument for unqualified state sovereignty, Sena- 

' Frederick Gritnke, Nature and Tendency of Free Institutions 
(1848), argued that “ when we assert that the sovereignty is inalien- 
able or indivisible, we, in effect, impose limitations upon the sov- 
ereignty, which is a contradiction,” p. 527. He held that in the 
United States sovereignty is divided between the “ states united ” 
and the “ states severally,” pp. 519-520. Nathaniel Chipman, Prin- 
ciples of Government (1833), concluded that there is an external 
sovereignty vested in the United States, but no provision made in 
the Constitution for an internal sovereignty, 142 ff. Sovereignty 
is also divisible : ” the opinion formerly entertained that the sov- 
ereignty of a state was a sort of indivisible essence, a power abso- 
lute, uncontrolled and uncontrollable, has been corrected in modern 
times. Experience has shown it capable of division.” p. 273. Cf. 
E. D. Mansfleld, The Political Grammar of the United States 
(1834), 520-521; John Taylor, New Views of the Constitution 
(1822), Sec. 13. Nathan Dane, General Abridgment and Digest 
of American Law (1823-1829), Vol. IX, Appendix, holds that 
sovereignty may be indivisible by “a people standing alone as in 
Russia or France,” but in “a family political connection,” like the 
United States, we “ give and distribute almost ad infinitum dele- 
gated powers, or what is vaguely called sovereignty,” Sec. 8. It 
also appears that “ though the nation is sovereign, the power of the 
general government is limited, and so, strictly and accurately speak- 
ing, is no sovereign,” Sec. 18. On the omission of the term “ sov- 
ereignty ” in the Constitution, see Sec. 35. 


tor Rives of Virginia, himself a states-rights man 
of the old school, said (1833) : “ Sir, this is a novelty 
unknown to the founders of the Constitution, and 
has sprung up in a hotbed of local politics. At the 
period of the adoption of the Constitution it was 
distinctly made known and understood that to the 
extent to which sovereignty was vested in the 
Union, that of the states was relinquished and 
diminished.” If the idea of a double sovereignty 
seemed to be without adequate historical prece- 
dent, so was the whole American system without 
parallel. As democracy seemed impossible until 
put in practice in America, so with the division of 
sovereignty. The fact that such a condition was 
not elsewhere to be found did not constitute an 
argument against its acceptance, but was rather a 
testimony to the “ peculiar adaptability of republican 

As has already been indicated, the progress of 
this idea was facilitated by the prevalence of the 
theory of popular as opposed to governmental sov- 
ereignty, and by the general belief that the New 
World had really little to do with the Old World 
conception of government in general or of sov- 
ereignty in particular. The wide acceptance of 
this idea throughout the United States made it 
for a long time possible to quiet the contention 
between the states and the Union by referring 
them to that authority above both ; namely, the 
“people.” When the contest between nationalism 



and particularism entered the acute stage, how- 
ever, this doctrine became less easy to maintain. 
The difficulty long concealed behind the compli- 
cated governmental machinery and the ambiguous 
term “people” became evident, the compromise 
doctrine was rejected by both North and South, 
and the battle fought out between the sovereignty 
of the states and that of the Union. 

It should not escape notice, however, that Joseph 
Story early distinguished two uses of the term 
“sovereignty” in such away as to obviate the diffi- 
culties inherent in the idea of double supremacy. 
He observed that “by sovereignty in its largest 
sense is meant supreme, absolute, uncontrollable 
power, the jus sum-mi imperii, the absolute right to 
govern.” * But the term, he showed, is also used 
in another and more limited sense, signifying 
“such political powers as in the actual organiza- 
tion of the particular state or nation are to be 
exclusively exercised by certain public function- 
aries without the control of any superior authority.” 
In this sense, he continues, the sovereignty “ may 
be of a very limited nature. It may extend to a 
few or many objects. It may be unlimited as to 
some, it may be restrained as to others.” In this 
use of the term, sovereignty is not the ultimate 
political power, but that which, “ under the given 
form of organization,” is exercised “without the 
control of superior authority.” From this point of 

* Commentaries, Secs. 207, 308. 


view it is easy to regard sovereignty as theoreti- 
cally divisible and as actually divided between the 
states and the Union, understanding that the “ab- 
solute right to govern ” still remains in its original 
unity and integrity. Sovereignty in the limited 
sense is divided ; in the broader sense it remains 

In this connection attention should be called to 
an application of the social-contract theory to the 
nature of the Union. This doctrine of contract 
was capable of different application, but in the 
hands of Madison and others was employed to 
combat the theories of the extreme states-rights 
party. It was conceded that the Union was formed 
by an agreement to which states, and not individ- 
uals, were the parties, but the binding force of the 
contract was emphasized in the very strongest 
way. The fact that the Union rests on a contract, 
it was said, should not be made an excuse for 
abandoning it at will. On the contrary, the very 
fact that it is a contract entitles it to the highest 
respect. “ It is,” said Madison, “ the nature and 
essence of a compact that it is equally obligatory 
on the parties to it, and of course that no one of 
them can be liberated therefrom without the con- 
sent of the others, or such a violation or abuse of 
it by the others as will amount to a dissolution of 
the compact.” ^ The states, then, may in an ex- 
treme case exercise their revolutionary right, but 
> Works, IV, 63. 


they cannot legally dissolve the Union at pleasure. 
They are bound as states by virtue of the contract.^ 
Of this nature was the theory of the Union pro- 
claimed by Jackson in his message of 1833 on the 
nullification question. His position was, that, with- 
out inquiring closely into the exact form of the 
national contract, “it is sufficient that it must be 
admitted to be a compact and to possess the obli- 
gations incident to a compact.” The parties to the 
agreement cannot dissolve the association without 
“ acknowledging the correlative right in the re- 
mainder to decide whether that dissolution can be 
permitted consistently with the general happiness.” 
Owing to the wide prevalence of the social-con- 
tract theory in America, this appeal to the binding 
force of a contract was an exceedingly effective 
argument to use. It was an easy step from the 
doctrine that governments derive their powers 
from the consent of the governed, to the idea that 
if the states had consented or contracted to form a 
government, they were bound by that agreement. 
The more strongly it was believed that the only 
legitimate basis of government was consent, the 
greater was the emphasis placed on the obligation 
of a contract or agreement, whether between states 
or individuals. And just as it was thought that 
the social contract must not be interpreted by any 
one citizen, but by the majority, so it was reasoned 
that the agreement between the states should be 

I Compare Lincoln’s Inaugural Address. 



interpreted by the majority, and not by any one of 
them at pleasure. The one-sided repudiation of a 
contract voluntarily entered into was, according to 
this theory, wholly unreasonable, and contrary to the 
analogy both of private law and of the social contract 
on which the society rests. By this line of reason- 
ing the conclusion was reached that the Union, 
although created by the voluntary act of the states 
as states, was not an association from which a 
state could depart at pleasure without consulting 
its fellow-states. 

None of these compromise ideas, however, offered 
a satisfactory solution of the problem. In the 
course of a generation after the Constitution was 
adopted, they were supplanted by well-defined 
doctrines of state sovereignty on the one hand, 
and national supremacy on the other. The conflict 
between nationalism and particularism, intensified 
by the agitation over the slavery question, passed 
out of the realm of compromise. Rigid dogmas 
were framed upon either side, their validity stub- 
bornly asserted, and the conclusion found in the 
field of armed conflict. 

Definite form was first given to the particularistic 
theory. The feeling of state sovereignty, strong 
from the first, had been aroused to vigorous protest 
by the summons issued against the state of Georgia 
from which resulted the eleventh Amendment; by 
the Alien and Sedition Laws; again by the war 
with England ; by the tariff of 1832 ; finally by the 


fear that the Union and slavery were incompatible. 
The outgrowth of this sentiment was the doctrine 
of Nullification and Secession. To the political 
philosophy underlying these ideas attention must 
now be given. 

In its earliest form the states-rights idea was 
based on the current theory of the social contract. 
Analogies were drawn between the social contract 
and the federal contract.^ The formation of the 
Union by the states was compared to that of a 
state by the individuals; reference was made to 
the natural rights of states, and it was suggested 
that the states, like individuals, might abandon the 
association of which they were members, if abused 
or oppressed. This analogy between social and 
federal contract was implied in the Kentucky and 
Virginia Resolutions. 

The doctrine was exploited by the Virginia jurist, 
H. St. George Tucker, in his Commentaries on 
Blackstone (1803). The states, said Tucker, are 
united in a confederacy, but still remain inde- 
pendent and sovereign. Each is still a sov'ereign 
state, still capable, should the occasion require, 
of resuming the exercise of its functions to the 
full extent. Whenever the common government 
becomes subversive of the rights of any state, it 
may secede as the states seceded from the old 
Confederation. This is a natural right of which 

' This argument had been used by James Wilson, although not 
in defence of states-rights. Works, I, 539. 


“ no force or compact can deprive the people of 
any state, whenever they see the necessity and 
possess the power to do it.”^ The state has the 
same right to withdraw from or overthrow the 
federal government as the individual has, under 
the Declaration of Independence, to overthrow any 
political system which has become oppressive. But 
this, it will be observed, gave the states only a 
revolutionary right of resistance or secession, and it 
also involved the recognition of the social contract.* 
Both of these ideas were repudiated by the later 
defenders of the cause of the states. 

The finally accepted statement of the states-rights 
doctrine was made by the great political philoso- 
pher of the South, John C. Calhoun. The work in 
which his ideas are most systematically expressed 
is, A Disquisition on Government, accompanied by 
A Discourse on the Constitution and Government 
of the United States, one of the ablest treatises on 
political theory that appeared in the first half of 
the last century.® This, taken in connection with 
the numerous public utterances of Calhoun, affords 
a basis for the study of his political philosophy. 

^ Commentaries^ I, 187. 

* Tucker speaks of the contract as partly social and partly fed- 
eral; also of a division of sovereignty between states and the 
government; but nevertheless maintains that a state may at will 
withdraw from the Confederation. 

® Published posthumously. See Calhoun’s IVorks, edited by 
Richard K. Cralle ; Correspondence of John C. Calhoun, edited by 
J. Franklin Jameson, in Vol. II, Annual Report of ike Americatt 



An analysis will first be made of bis theory of 
nullification, and then of the doctrine of secession 
with which be is associated. The inquiry is directed 
in the first place, then, to the general attitude of 
Calhoun toward the fundamental question of the 
origin of the political society. 

Calhoun condemned in no uncertain terms the 
time-honored hypothesis of a pre-ci\il “ state of 
nature” and the origin of government by means 
of a contract. 1 This had been the theory of the 
revolutionists in the seventeenth and eighteenth 
centuries, and continued to be the prevailing Ameri- 
can doctrine even in the nineteenth. In fact, this 
hypothesis of an original “state of nature” and 
the contractual character of government had been 
one of the leading principles of “the Fathers”; 
the theory of contract had even been extended from 
individuals to the relations between the states ; it 
was recognized in many of the state constitutions ; 
adopted by men of all parties, aristocrats as well 
as democrats ; and was generally accepted as the 
correct theory of the origin of political institutions. 
In the politics of Calhoun, however, there was no 
place for the assumptions of the Naturrecht phi- 

Historieal Association for 1899. Of especial importance are Cal- 
houn’s speeches on The South Carolina Exposition (1828), Vol. Ill; 
The Force Bill (1833), Vol. II; Reply to Webster (1S33), VoL II; 
Reception of Abolition Petitions (1837), Vol. IV; Veto Power 
(1842), Vol. IV. See the Life of Calhoun, by H. von Holst. 

' Cf. ‘ A Study of Nullification in South Carolina,” by D. F 
Houston, in Harvard Historical Studies, Vol. Ill (1896). 



losophy, and he had no sympathy with this interpre- 
tation of the nature of government. The “ state of 
nature ” he regarded as a mere fiction, an unwarrant- 
able hypothesis. “Instead of being the natural 
state of man, it is, of all conceivable states, the 
most opposed to his nature, most repugnant to his 
feelings, and most incompatible with his wants. 
His natural state is the social and political.” 

Government is not artificial and unnatural, but 
perfectly natural in the sense that it is neces- 
sary to the development and perfection of human 
powers. Government is not a matter of choice, 
depending for its origin and continuance on the 
caprice of the individual ; on the contrary, it is 
a primary necessity of man, and, “ like breathing, 
it is not permitted to depend on our volition.” * 
There are, reasons Calhoun, two fundamental ele- 
ments in the constitution of man : one the selfish, 
the other the social instinct or tendency. Of these 
two, however, the stronger is the selfish tendency, 
and as a consequence, there arises conflict between 
individuals which must be in some way controlled. 
The instrument by means of which this control 
is effected is government — a necessity arising out 
of the essential nature of man.® Society is neces- 
sary to man ; government is necessary to society. 
But government itself contains the germ of evil, 

» Ibid. 8. 

* Ibid, 1-4. Calhoun avoids using the term “selfish,” substitttk 
ing “ direct ” or “ individual.” 


and must in its turn be controlled or balanced. 
To this end is erected a constitution intended to 
hold in check the destructive tendencies found in 
government. This constitution bears the same 
relation to government that government bears to 
society ; as government restrains the selfish ten- 
dencies of the individual, so the constitution checks 
the selfish tendencies of the government. There 
is this difference to be noted, however, that gov- 
ernment is of divine origin, whereas the constitu- 
tion is a human device and construction. There 
mtcst be a government; there may be a consti- 

The organization of the constitution Calhoun re- 
gards as one of the greatest of political problems. 
How can the government be given the powers nec- 
essary and yet be restrained from oppressing the 
members of the society ? Calhoun’s answer to this 
perennial problem is that there must be created 
an organism “by which resistance may be syste- 
matically and peaceably made on the part of the 
ruled to oppression and abuse of power on the part 
of the rulers.” ^ This result may be effected by 
establishing the responsibility of the rulers to the 
ruled through the exercise of the right of suf- 
frage — the primary principle in the establishment 
of constitutional government. Yet this alone is 
badequate to afford the necessary protection ; " it 

1 Ibia. 8. 

* Tbid. 12. 


27 \ 

only changes the seat of authority, without coun- 
teracting, in the least, the tendency of the govern 
raent to oppression and abuse of its powers.”' 
We are still confronted by the imminent danger 
that the majority of the electors will prove to 
be tyrannical and oppress the weaker minority 
as intolerably as the most irresponsible govern- 

Calhoun enters, therefore, on a vigorous polemic 
against the despotism of the majority. He asserts 
that the tendency of the majority is to assume all 
the rights belonging to the people. Although 
only a fraction, they assume to be and act as 
the whole people ; while on the other hand, the 
minority is treated as if it were nothing at all. 
Again, Calhoun points out the probability that 
great political parties will arise, that their organi- 
zation will become increasingly centralized, and 
that continually stricter party discipline will pre- 
vail. Offices will come to be regarded as the 
legitimate reward of the victorious party, while 
recognition of other than partisans will be ex- 
cluded. Party strife will become fiercer and fiercer 
as it becomes more factional, and will finally re- 
sult in an appeal to force and the establishment 
of absolute government.* 

Nor is there any way by which this inherent 

1 Ibid. 14. 

* Ibid. 42. Calhoun had before him the spoils system inangnrated 
by Jackson. See Vol. II, 435. 


tendency may be effectively restrained. It may be 
urged that a sufficient check is found in the power 
of public opinion to keep party spirit within reason- 
able limits. But to this Calhoun is not ready to as- 
sent. He concedes the great strength of public 
sentiment, particularly that of modern times in its 
highly developed form, but does not consider it 
even yet as an effective barrier against the ten- 
dencies of the majority. Public opinion itself may 
be just as despotic as the majority party, just as 
radical and unreasonable, and consequently just as 
uncertain a defender of the rights of the minority. 
Nor are constitutional restrictions or the separa- 
tion of powers of sufficient force against the ma- 
jority. All restrictions must be interpreted, all 
requirements carried out, by the prevailing party. 
The minority is helpless and must submit to any 
adjustment of constitutional balances that may 
commend itself to the majority.^ 

The “tyranny of the majority ” is, then, one of the 
fundamental propositions in the theory of Calhoun. 
Majority rule is always liable to abuse at the hands 
of a party, an interest, or a section, which inter- 
prets constitutional law, determines public opinion, 
arrogates to itself the right and privilege prop- 
erly belonging only to the whole people. With 
dramatic power Calhoun pictures the inevitable 
advance of majority encroachment and aggres- 

r Disquisition, 22 ff. See Madison’s defence of majority rulei 



sion.^ Application of this principle is made in ref- 
erence to the question of taxation. Under the opera- 
tion of the numerical majority, says Calhoun, a party 
or section obtaining power may easily abuse and op- 
press another section found in the minority. Taxes 
may be levied by the majority section, which bur- 
den chiefly the minority section ; not only this, but 
these taxes are actually returned by the minor- 
ity to the majority, virtually bounties paid by the 
weaker to the stronger party. The case in point 
was that of the protective tariff, which he con- 
sidered was levied for the benefit of the North at 
the expense of the South. It seemed to him, 
therefore, an excellent illustration of the “ major- 
ity tyranny ” upon which so much emphasis had 
been laid. 

In place of the dangerous, “ numerical majority," 
Calhoun presents his doctrine of the "concurrent 
majority.” “ All constitutional governments,” says 
Calhoun, “ take the sense of the community by its 
parts, each through its appropriate organ.”* On 
the other hand, those governments in which power 
is centred in an individual or a body of individuals, 
even including the majority, may be regarded as 
absolute governments. The principle upon which 

^ Itis interesting to note that Calhoun objected to party caucoset 
and conventions ** because they are irresponsible bodies, not known 
to the Constitution.” The election of the President, he held, should 
be left to the electoral college as the framers of the Constitution 
intended. fVorks, Vol. IV, 394. 

^ Disquisition^ 36b 


they rest is, in last analysis, force, in contrast to 
the principle of constitutional governments, which 
is that of compromise. Under the “concurrent” 
or “ constitutional ” majority system this principle 
of compromise will be made effective by giving 
“each interest or portion of the community a 
negative on the others.” ^ Without a “ concurrent 
majority ” there can be no negative ; without a 
negative there can be no constitution. Calhoun 
declares that “it is this negative power — the 
power of preventing or arresting the action of the 
government — be it called by what term it may — 
veto, interposition, nullification, check, or balance 
of power — which, in fact, forms the Constitution.”* 
The positive power makes the government, but 
the negative power makes the constitutmi. The 
essence of the “concurrent majority” is, then, the 
veto power granted to the various separate interests. 
Governmental action is conditioned, not upon the 
consent of a majority of ittdividnals, but upon that 
of various interests. 

The advantages of such a system are presented 
with great enthusiasm. With a “ concurrent major- 
ity ” there will be a greater degree of attachment 
to the state than is otherwise possible.® Attention 
will be attracted not so much to party as to country. 
The government will not discriminate against any 
one interest or group, and hence there will be no vio- 
lent resentments and animosities provoked as undel 
* Diiquintion, 35. * Ibid. » Ibid. 47. 



the rule of the absolute majority. Consequently 
there will result a higher development of “ common 
devotion.” Politically and morally there must fol 
low, according to Calhoun, loftier standards of con- 
duct under this regime of compromise than under 
that of force. Moreover, under this system there 
may be obtained a higher degree of liberty.^ Gov- 
ernment will be effectually restrained from arbitrary 
and oppressive conduct by the veto power of the 
various interests, and thus political freedom will be 
guaranteed. In any other government, indeed, 
liberty can be little more than a name ; the “ con- 
stitutional majority” alone makes it a reality. By 
the same logic, civilization and progress are fostered 
by the system of compromise, for under it are 
secured liberty and harmony — two great factors 
in civilized development.^ On the whole, Calhoun 
would conclude that the “ organism ” known as the 
“concurrent” or “constitutional” majority is 
eminently adapted to realize the great ends of 
government included under the protection and 
perfection of society. 

Two objections may be raised against the pro- 
posed system, Calhoun concedes ; namely, its com- 
plexity and its ineffectiveness. To the first of 
these he replies that the simplest of all governments 
are absolute and that all free governments are of 
necessity complex in their structure. Hence this 
style of argument applies to the whole philosophy 
^ Ibid. 59 . * Ibid. 61 . 


and practice of free governments, which he does 
not consider it necessary to defend. Nor is the 
objection to the effectiveness of the proposed 
system regarded as serious. Calhoun maintains 
that in times of real stress the compromise principle 
is not unfavorable to the passage of necessary 
measures, and that any policy agreed upon is far 
more enthusiastically supported than if compelled 
by force. Obedience will be rendered, not from a 
selfish or sectional motive, but from a higher sense 
of obligation to country. An analogy to the com- 
promise principle is discovered in the unanimity 
required of a jury before decisive action can be 
taken. As circumstances lead the jurors to a 
unanimous decision, so the far more imperious ne- 
cessities of government will lead to a compromise 
and agreement in the affairs of state. Historical 
illustrations of the compromise are afforded by the 
experience of Poland with the liberuvi veto, by the 
Confederacy of the Six Nations, the Patricians and 
Plebeians in Rome, the Lords and Commons in 
England, and by the United States, if the original 
intention of the Fathers were carried out. 

It is now evident that Calhoun’s argument all 
leads up to the defence of a particular theory of 
public law in the United States. “ Concurrent ” or 
“ constitutional ” majority is simply the prolegomena 
to nullification. The individual states of the Union 
are to enjoy a veto on the proceedings of the general 
government, thus establishing the principle of action 


through the concurrent instead of the numerical 
majority. A state may reject any measure of the 
general government regarded as inconsistent with 
the terms of the Constitution ; may, in other words, 
nullify the proposed action of the federal govern- 
ment. If three-fourths of the states support the 
action of the government, the nullifying state must 
either yield or withdraw from the Union.^ Thus 
a constitutional means of defence is possessed by 
each state ; there is no possibility of tyrannical con- 
duct on the part of the “ numerical majority ” ; 
and the action of the “ concurrent majority ” is 
assured. Nullification, in Calhoun’s eyes, was not 
only a theory of the relation of the states to the 
Union, but it was a theory of constitutional 
government in general; founded not merely in 
the particular system of the United States, but 
equally essential in the frame-work of any free 

In South Carolina for example, he points out, 
representation in the legislature is distributed on 
the basis of property, population, and territory. 
Representation in the senate is based on election 
districts, and thus gives to the southern part of the 
state the predominance in that body; the house 
is based on property and population, thus giving 
the northern part of the state the majority there. 
As the governor, the judges, and all important 
officers are elected by the legislature, there is 
^ See Diitowru, 297 ff. 


established an equilibrium between the sections. 
“ Party organization,” says Calhoun, “ party disci- 
pline, party proscription, and their offspring, the 
spoils principle, have been unknown to the state.” ^ 
The same principle and similar methods might 
well be introduced, he thinks, into other states 
and there be followed by like beneficent results. 

As already stated, nullification as conceived by 
Calhoun was not simply a theory of the American 
Union, but a fundamental doctrine of free govern- 
ment. Whether the political theory of nullification 
was chronologically or only logically antecedent to 
the constitutional theory of nullification, is a matter 
which need not here be discussed ; the important 
fact is that in the developed thought of Calhoun, 
the “concurrent majority” was declared to be a 
vital element in constitutional government.^ 

The next object of inquiry is Calhoun’s state- 
ment of the doctrine of secession. The germ of 
this theory is found in Calhoun’s conception of the 
nature of sovereignty. In the early years of the 
Republic it had been generally believed that in 

* See Discourse, 405. 

* Calhoun favored a plural executive for the United States. 
This, he urged, was the practice in Sparta, Rome, and even England, 
where the cabinet is the real executive. In the United States there 
should be one of the members constituting the executive from each 
of the two great sections of the country. Discourse on Constitu- 
tion and Government, 392-395. Calhoun’s opposition to Jackson’s 
use of the executive power would also lead him to favor a plural 


the United States there existed a divided sov- 
ereignty. The states were sovereign in certain 
matters, the national government sovereign in cer- 
tain others, and each was supreme in its proper 
sphere. If any ultimate sovereign was thought of, 
it was the people as contrasted with the government. 

Calhoun, however, was wholly intolerant of any 
theory of divided sovereignty. To him this was 
logically impossible and contradictory. He rea- 
soned that in its very nature sovereignty must be 
indivisible. “To divide is to destroy it;” sov- 
ereignty must be one, or it is not at all. There 
can be no state partly sovereign and partly non- 
sovereign ; there can be no association composed 
of half-sovereign states on the one hand, and a 
half-sovereign government on the other. The 
vital principle of the state, its life and spirit, can- 
not be sundered ; it must remain one and indi- 
visible. Thus in Calhoun’s doctrine, all compromise 
was rejected, and the doctrine of the indivisibility 
of sovereignty presented in its clearest and most 
striking light. 

Applying this argument to the nature of the 
Union, Calhoun asserted that the states were origi- 
nally sovereign, and that they had never yielded 
up their sovereignty. They could not surrender a 
part and retain another part, but they must either 
have given up all, or have retained all ; the states 
must be fully sovereign or fully subject. This was 
the alternative which Calhoun urged with relent- 



less logic. Given the original sovereignty of the 
states, and the indivisibility of sovereignty, either 
the states must be sovereign communities and the 
United States a mere agent, or the United States 
must be sovereign and the states wholly subordi- 
nate. In Calhoun’s theory there was no oppor- 
tunity given for a division of the field between the 
states and the Union ; such a compromise was ex- 
cluded.^ It is true, he concedes, that the central 
government enjoys the right to exercise sovereign 
powers, but it does not have the true sovereignty 
from which these powers are only emanations. The 
central government acts as a sovereign, but it is not 
a sovereign. It wears the robes of authority only 
by sufferance of the legitimate owner, the states. 

To the central government there are delegated 
by the states certain attributes of sovereignty, such 
as the war power, the taxing power, the power to 
coin money ; but these powers do not constitute 
sovereignty. In Calhoun’s theory these attributes 
of sovereignty may be divided, and the supreme 
authority itself remain unimpaired.^ Thus the 
states do not surrender the sovereignty ; they 
merely forego the exercise of certain of its attri- 
butes, and these are liable to recall at any moment 

1 Cf. Works, Vol. II, 232, 233, in reply to Gayton and Rives. 

^Discourse, 146. “There is no difficulty in understanding hov* 
powers appertaining to sovereignty may be divided, and the exer- 
cise of one portion delegated to one set of agents and another 
portion to another.” 


by the state from which derived. In fact, neither 
federal nor state government is supreme, for there 
is a determining power back of both. One must 
distinguish, he maintains, between the constitution- 
making power and the law-making power; the 
former alone is sovereign, and to its act is due 
the formation and organization of the government.' 
The constituent power in any state concedes both 
to the state government and to the national gov- 
ernment certain powers or attributes of sovereignty ; 
but as it may recall the power granted to the 
state government, so with equal right it may recall 
the authority delegated to the central government 
Throughout this process the sovereign power re- 
mains intact. The practical conclusion which he 
draws is, naturally, that the states may at any time 
rightfully assert their sovereign prerogative and 
withdraw from the Union. 

It is further important to notice how, on Cal- 
houn’s basis, he differentiated the United States 
from a league or confederacy. What line of de- 
markation could he draw between the political 
organization under the Articles of Confederation 
and that effected under the Constitution ? Calhoun 
declared that the main difference between these 
two types of association consisted in the fact that 
the Confederacy lacked one essential feature of the 
“ Republic,” namely, a fixed and stable government. 
The so-called “government” of a confederacy is 

> Discourse, 191. 



“nearly allied to an assembly of diplomats,” meet- 
ing to determine certain policies, and then leaving 
their execution largely to the several parties to the 
agreement. “ Our system is the first that ever 
substituted a government in lieu of such bodies. 
This, in fact, constitutes its peculiar characteristic. 
It is new, peculiar, and unprecedented.” ^ Among 
the changes involved in the passage from Con- 
federacy to “ Republic ” was, in the first place, a 
change in the source from which power was 
derived. The Confederacy obtained its authority 
from the state governments ; the “ Republic ” from 
the sovereign communities themselves. The Con- 
federacy was a mere league between governments ; 
the “ Republic ” is a “ more perfect union ” between 
sovereign communities. Another point of differ- 
ence is that in the “ Republic ” there is needed a 
much more careful specification and enumeration 
of powers than was required in the Confederacy, 
where the states themselves were immediately con- 
cerned in the administration.^ Furthermore, under 
the Confederacy the state governments w'ere supe- 
rior to the central government, which was merely 
their agent ; but in the “ Republic ” the federal and 
the state governments are equals and coordinates.® 
Both are inferior in rank to the constitutional con- 
vention of the state which gives them life. Lastly, 
there was a change in the method of executing the 
commands of the central government. The Con- 
’ Discourst, 163 . * Ibid. 164 . • Ibid. 167 . 



Federacy acted through the states ; the “ Republic " 
is authorized to act directly upon individuals.^ 

The difference, then, between the “ Republic,’ 
or a federal system, and a “ nation ” must be 
sought, not in the character of the powers exer- 
cised, but in the basis upon which they rest. It 
matters not how large the power of the federal 
government ; if that power may be recalled by the 
states, the federal government is subordinate and 
they are sovereign. The federal government may 
have possession ; the states have ownership : and 
they may at any time evict their tenant, or any one 
of the states may claim its share of the estate.^ 

Of the influence of Calhoun there is no question. 
He was easily the first in rank among the theorists 
of his school, and his ideas dominated the South. 
His political theories became the dogma of the 
particularistic party; they were pressed with the 
most rigid and unyielding logic, and led straight 
to the trial of arms in the Civil War. After the 
close of this struggle, the theory of states-rights 
was again stated by such authorities as Jefferson 
Davis,® Alexander H. Stephens,^ and Bernard J. 

1 Ibid. 168. 

^ Calhoun’s theory found expression in the constitution of the 
Confederate States. 

® The Rise and Fall of the Confederate Government (1881). 

* A Constitutional View of the Late IVar between the States 
(1868), p. 70. Cf. A Brief Inquiry into the True Nature ani 
Character of our Federal Government, by A. P. Upshur (^1840), a 
review of Story’s Commentaries. 


Sage,^ but little was added to what had already 
been said by Calhoun. His doctrines still stand as 
the most perfect formulation of the particularistic 
idea which played so large a part in the first two 
generations of the life of the Republic. 

The nationalist theory of the Union, like the 
particularistic doctrine, did not develop imme- 
diately on the establishment of the Constitution. 
The first great champion of the cause was Daniel 
Webster, who contributed more to the strengthen- 
ing of Union sentiment than any other one man. 
Webster’s theory, however, was constitutional in 
nature, rather than philosophic. He attempted to 
show from the language of the Constitution itself, 
without much discussion of philosopnic or historic 
considerations, that the Union was formed by a 
contract between individuals which resulted in the 
establishment of a supreme law and government, 
and that the states as such were not concerned 
in this agreement. “The people of the United 
States” he understood to mean the people of the 
whole Union, and not of the several states. The 
Union is not merely a compact between states to 
form a new Confederacy, but an agreement be- 
tween individuals to form a national government. 
“ It is established,” said he, “ by the people of the 
United States. It does not say by the people of 
the several states. It is as all the people of the 

^ The Republic of Republics^ or American Federal LibertVt by 
P. C. CenU (Bernard}, Sage), 1865. See especially Chap. VI. 



United States that they established the Constitu- 
tion.” Thus the Constitution of the United States 
was formed just as any state constitution ; namely, 
by means of an agreement between individuals. 

But a state constitution, although created origi- 
nally by an agreement between individuals, was not 
regarded as a contract, but as a law. It was 
created by an agreement, but when that agree- 
ment was once made, there came into being a law 
proper. To use an analogy from private law, the 
agreement has become an “executed contract.” 
“ When the people agree to erect a government,” 
said Webster, “ and actually erect it, the thing is 
done, and the agreement is at an end. The com- 
pact is executed, and the end designed by it is at- 
tained.” ^ The same argument was made by Story, 
who urged that a constitution falls under the defi- 
nition of law as laid down by the eminent authority, 
Blackstone. “ It is,” said he, “ a rule of action pre- 
scribed by the supreme power in the state, regulat- 
ing the rights and duties of the whole community. 
It is a rule, as distinguished from a temporary or 
sudden order — permanent, uniform, and universal. 
It is also called a rule to distinguish it from a com- 
pact or agreement, for a contract is a promise pro- 
ceeding from us, law is a command directed to us.” * 

* Works, III, 468 (1833). Reply to Calhoun. 

* Commentaries, Sec. 339. Cf. the Federalist, No. 33. Nathan 
Dane, General Abridgement and Digest of American Law (1823- 
1829), Appendix, Sec. 14 flf. 


On this basis it was denied that the Constitution 
of the United States could be regarded as a con- 
tract, and the assertion made that it must be con- 
sidered as a law in the strict and proper sense of 
the term. It is, in fact, the supreme law of the 
land, and carries with it the very highest degree of 
obligation. The Union is not a mere treaty relation 
which may be denounced at will, but an agreement 
as obligatory and indissoluble as the social contract 
on which the whole fabric of society rests. Hence 
a state has no more right to question the authority 
and supremacy of the Constitution than a citizen 
of Massachusetts has to question the constitution 
of that state ; not even as much right, for the Con- 
stitution of the United States is the supreme law 
of the whole society. The individual may exert 
the original right of revolution, but he has no legal 
right to resist the constituted authorities of the 

Webster’s doctrine was, then, that the Union is 
not a treaty relation between sovereign states, as 
Calhoun argued, or a contract between states by 
which the sovereignty of the contracting parties is 
diminished, as Madison contended; but it is a law^ 
resting on a social contract between individuals, 
and in which the states as such had no part. The 
Constitution is a government ordained and estab- 
lished by the people of the United States. In the 
expressive language of Webster, the Union is, “ the 
association of the people under a constitution of 



government, uniting their highest interests, cement- 
ing their present enjoyments, and blending in an 
indivisible mass all their hopes for the future.” 

Although reasoning with great skill and elo- 
quence from the strict letter of the Constitution, it 
is evident that Webster’s real power did not come 
from his constitutional arguments as such. The 
very question over which he and Calhoun fought 
was whether the Union should be regarded and in- 
terpreted from the standpoint of constitutional law 
or of international law. If the states were never 
sovereign or had yielded up their sovereignty, then 
Webster’s contention, that secession is an unconsti- 
tutional act, was valid. But to Calhoun, who looked 
upon the Union as, in ultimate analysis at least, a 
treaty between sovereign states, secession could not 
be regarded as unconstitutional, but at the worst as 
a breach of international law. The discussion, as 
they carried it on, amounted to an argument over 
the legality of an act, with one of the parties deny- 
ing the existence of the law under which such 
validity was contested. Webster wished to make a 
purely legal argument on the question of legal 
sovereignty. Calhoun declined to make it purely 
a legal question, but at the same time disregarded 
the matter of fact. 

When we consider the social and economic 
forces on which political forms are based, Webster 
had the stronger position, and for this reason. 
Calhoun was continually looking backward to a 



State of things that once perhaps may have existed, 
and he failed to observe that every year was carry- 
ing him farther away from his premise. The fatal 
flaw in his argument was that, even granting his 
cherished hypothesis that the states were originally 
sovereign, it did not follow that they would continue 
to possess that fulness of power forever.^ On the 
other hand, Webster’s hypothesis was looking to 
the future tense, and every year of nationalizing 
conditions was therefore strengthening his conten- 
tion. The great weight of his argument was due 
to the fact that even if his interpretation of “ We, 
the people ” was denied, it did not follow that his 
conclusions were not sound. His power as a con- 
troversialist really came, not from the strength of 
his constitutional arguments as such, but from the 
fact that he followed a great current of public sen- 
timent, springing from the impulse of nationality. 
He had with him the reasoned and unreasoned 
forces of an ethnic and geographic unity strug- 
gling toward self-expression. 

* Calhoun recognized this at times. In reply to a suggestion 
that the best policy for the South would be separation, he said 
(1838) : '*That is a natural and common conclusion, but those who 
make it up do not think of the difficulty involved in the word; how 
many bleeding pores must be taken up in passing the knife of sepa- 
ration through a body politic (in order to make two of one) which 
has been so long bound together by so many ties, political, social, 
and conunercial. . . . We must remember it is the most difficult 
process in the world to make two people of one; and that there is 
no example of it, if we except the Jews.” Correspondence, 391. 



The political theory of the nationalist school 
was not fully stated until the events of the Civil 
War had shown the strength of the Union senti- 
ment. In this great struggle the latent force of 
the national spirit was at last decisively mani- 
fested, and the nature of the American Union set- 
tled beyond question. At the close of the four 
years of war there could be no uncertainty whether 
the United States should be ranked as a confed- 
eration or as a nation. There was, perhaps, room 
for question as to the exact powers possessed respec- 
tively by central and by local governments, but the 
great problem of nationality was settled beyond 

This nationalist tendency was marked not only 
in the United States, but also in European countries, 
where similar unifying influences were at work. 
The struggles of the Hungarians, the Poles, the 
Greeks, the profound movements preceding the 
establishment of German and Italian national 
unity — all gave evidence of the vitality of the 
national principle in world politics. The right of 
each nationality to organization as a separate state 
was strongly emphasized; the doctrine of nation- 
ality was, indeed, the most conspicuous political 
dogma of the time. It is a significant fact that, 
within one decade, three great peoples — the 
United States, Germany, and Italy — established 
by "blood and iron” the fact of their national 


The natioisafist theorj* in its Sater toon differed 
materially from that advaoced by IVebster and his 
schooL The doctrine was, in the first place, less 
stricti}' legal and constitutionai in form ; it con- 
tained a larger element of the philosophy that calls 
attention to the organic elements in the state, and 
corresporiding!}' less of the contract theory of the 
eighteenth centur)*; and finally it emphasized more 
strongl)' the unity and indirisibility of the sover- 
eignty, and consequently the wholly suboirdinate 
position of the states. 

In the first place, the form of the national argu- 
ment was radicall}' changed. Webster and his 
school had relied almost entirely upon legal and 
constitutional proofs that the United States is a 
nation; “We, the people of the United States"; 
" the supreme law of the land ; the prorisions 
concerning the “ general welfare ” and ail “ neces- 
sary and proper ’’ powers — these were the foun- 
dations upon which the cause rested. The plain 
language of the Constitution, it was said, is amply 
sufficient to show the national character of that 
instrument. The Constitution wms made the cen- 
tral figure in the discussion, strict adherence to its 
requirements was demanded, and argument was 
not carried beyond its boundaries. In the course 
of the war, however, the point of view changed. 
The stem necessities of that great conflict led to 
a certain disregard for strictly legal forms, and 
provoked the expression of a determination to 



maintain the Union at whatever cost, while the 
whole war brought into view the unexpected 
strength of the Union sentiment. Although not 
abandoning the claim that the Constitution is a 
distinctly national instrument, the new school was 
not satisfied to rest wfith the literal and legal proof. 
Thej' asserted that whatever the correct interpre- 
tation of the Constitution may be, the United 
States is and must be recognized as a nation. The 
argument was carried back of governmental forms, 
back of the written Constitution, so long a popu- 
lar idol, to the primary source of power, the creator 
of these forms, the American nation as it exists 
behind the Constitution. This idea was expressed 
by Lincoln, when he made the assertion that “ meas- 
ures otherwise unconstitutional might become law- 
ful by becoming indispensable to the preservation 
of the Constitution, through the presejn^ation of 
the Nation." * Evidence of the same spirit is given 
by the statement of Fisher that, “ if tfic Union and 
t/ie government cannot be saved out of this terrible 
shock of war constitutionally, a Union and a govern- 
ment must be saved unconstitutionally.” ^ The fact 
that there is an unwritten constitution of the nation, 
in contrast to the written Constitution of the gov- 
ernment, was frequently pointed out. Jameson, for 
example, distinguished constitutions as “organic 
growths” from constitutions as “instruments of 
evidence.” The former are the product of various 

IVorJks, II, 508. * Tii Trial of the Constitution, 199 (1862). 


social and political forces; the latter, “the result 
of an attempt to express in technical language 
some particular constitution, existing as an organic 
growth.”^ Brownson distinguished between the 
Constitution of the state or nation on the one hand, 
and the Constitution of the government on the 
other. The Constitution of the nation, the “con- 
genital” or “providential" Constitution, as it is 
variously termed, consists in “ the genius, the char- 
acter, the habits, customs and wants of the people ” ; 
and upon this the governmental Constitution must 
rest if it is to operate successfully.^ Mulford dis- 
tinguished between the historical and the enacted 
constitution, one the result of the nation’s historical 
development, the other the formula prescribed for 
public order at any given time.® Still more strik- 
ing was the argument of Hurd, who took the 
ground that the effort to determine from the Con- 
stitution itself, whether the states or the United 
States is sovereign, is wholly futile, and must be 
so in the nature of the case.* Sovereignty, said he, 
does not proceed from or depend upon constitution 

^ J. A. Jameson, Constitutional Conventions^ Sec. 63 (1866). 

^ O. A. Brownson, The American Republic, Chap. VII (1866), 

® Elisha Mulford, The Nation, Chap. IX. (1870), A writer de^ 
cidedly under the influence of the German Transcendentalists. 

* John C. Hurd, The Lav) of Freedom and Bondage (1858); 
The Theory of our National Existence (1881); The Union State 
(1890). “ Sovereignty cannot be aa attribute of law, because, by 

the nature of things, law must proceed from sovereignty. By the 
pre€xistence of a sovereignty, law becomes possible.” The Theory 
of our National Existence, 97. 



or law, but itself makes constitutions and laws. 
It is the creator, not the creature. Sovereignty is a 
matter of fact rather than of law, and hence it is to 
the facts we must look for an answer to the question. 

With this group of thinkers, dominated by the 
spirit of nationality, and influenced by the philosophy 
of such writers as De Maistre ^ and Lieber, the ten- 
dency was to go back to the power that makes and 
unmakes constitutions. They were no longer satis- 
fied to construe the language of a written document, 
but claimed the right to make an examination of the 
political, social, and economic forces which are the 
life and spirit of a state. They were no longer 
interpreters of law, but observers of the forces that 
make and unmake law. 

Among those entertaining such views there was 
little question as to whether the sovereignty be- 
longed to the individual states or to the Union. 
Judged by all the canons of distinction, the states 
could not be regarded as nations ; this attribute 
must be reserved for the United States as a whole. 
The sovereignty was unhesitatingly attributed to 
the people of the nation. “ Back of all the states,” 
said Jameson, “and of all forms of government 
for either the states or the Union, we are to con- 
ceive of the nation, a political body, one and 
indivisible."^ Brownson thought that by the 

^ A conspicuous representative of the reaction against the French 
Revolution. See his Essai sur h principe generaieur des constitu> 
Hons poliHqueSf 1807. 

2 Op. cit. Sec. 51. See Secs. 30-31 on definition of a nation. 


unwritten constitution the sovereignty rests with 
“ the people as a whole or the collective body ” in 
the modified organic sense, although by the written 
constitution there is in fact no sovereignty, the 
governmental powers being divided between the 
local and the general governments. Mulford de- 
nounced the confederate principle in the language 
of German transcendentalism, and declared that 
the supreme power in the United States rested 
only in the nation at large, and not in any common- 
wealth. On every hand the supremacy of the 
Union was asserted in the strongest terms, and 
the dignity of the states disparaged. This was a 
legitimate conclusion from the great demonstration 
of strength exhibited in the maintenance of national 
authority and the preservation of the Union. 

Although the defenders of the Union agreed 
in vesting the sovereignty in the nation as con- 
trasted with the individual states, there was not 
entire harmony of opinion as to what part the 
states occupied in the Union. On the one hand, it 
was held that the sovereignty of the United States 
is constituted regardless of and independent of the 
states. Thus Jameson maintained that the nation 
is “ a political body, one and indivisible, made up 
of the citizens of the United States, without dis- 
tinction of age, sex, color, or condition of life.” ^ 

^ Cf. Joel Tiffany, A Treatise on Government and Constitutional 
Lam (1867) ; J. N. Pomeroy, Constitutional Law (1868). For a dis- 
cussion of the various theories as to the status of the commonwealths 


This is the ultimate source of political power, out 
of which all governmental authority flows. Gen- 
erally and regularly the sovereignty is exercised, 
it is true, through the groups called states; but 
back of these states there is a power by which 
they may be limited and restrained ; namely, the 
sovereignty of the nation.^ 

On the other hand, the necessity of recognizing 
the states as integral parts of the Union was not 
less strongly urged. Brownson, although defend- 
ing the sovereignty of the nation, declared that the 
political or sovereign people of the United States 
existed as states united and only in this way.^ The 
sovereign nation was, therefore, the people as organ- 
ized in states. To the same end Hurd contended 
for the recognition of the “states united.” "The 
people,” he declared, “or the nation holding sov- 
ereignty as distinct from the states, or the politi- 
cally organized people of the states, was not even 
a myth ” (until the Civil War). The states alone 
were not sovereign, the people were not sovereign, 
but this attribute belonged exclusively to the states 
in Union. This view seems to have also the sanc- 
tion of the Supreme Court in its declaration : “ The 

which passed ordinances of secession, see W. A. Dunning, Essays 
on the Civil War and Reconstruction. 

^ Constitutional Conventions, Sec. 57; also Political Scienct 
Quarterly, V, 193, In the first edition of the Constitutional Cotv 
ventions, Jameson spoke of a “quasi-sovereignty” in the states 
Cf. Mulford, Pomeroy, and others. 

® American Rept^lic, 319. 


states disunited might exist. Without the states in 
union, there could he no such political body as the 
United States.” ^ 

In this discussion, however, there is no claim 
that the individual states are sovereign. The issue 
is one as to how the national sovereignty is organ- 
ized, whether it rests with the people of the whole 
nation, or with an association or group of states. 
The whole controversy really arises from a failure 
to distinguish clearly between the legal and the 
political side of sovereignty — a lesson which the 
events of the Civil War might have made clear.* 

The new view of the Union differed in another 
respect from that of Webster, namely, in regard to 
the genesis of the United States. Webster thought 
of the Union as formed, in accordance with the 
political philosophy of the Revolutionary era, by 
means of a social contract between individuals. In 
the new national school, the tendency was to disre- 
gard the doctrine of the social contract, and to 
emphasize strongly the instinctive forces whose 
action and interaction produces a state. This dis- 

1 Lane County v. Oregon, 7 Wallace, 76 (1868), The court still 
continued to speak of a divided sovereignty. See United States v, 
Cruikshank, 92 U, S., 550 (1875); Ex parie Siebold, 100 U.S., 384 
(1879). With this some of the commentators agree. See Cooley, 
Constitutional Limitations (3d edition, 1874), i; Black, Con^ 
stitutional Law^ 21. 

2 On the question as to just where the sovereignty in a state is 
located, see Woodrow Wilson, An Old Master^ 95; WUloughby, 
Tht Nature of the State, 293-294, 307, 


tinction was developed by Lieber, who held that the 
great difference between “people” and “nation” lies 
in the fact that the latter possesses organic unity. 
“ People ” signifies merely “ the aggregate of the 
inhabitants of a territory without any additional idea, 
at least favorable idea.” “ Nation,” on the other 
hand, implies a homogeneous population, inhabiting 
a coherent territory ; a population having a common 
language, literature, institutions, and “ an organic 
unity with one another, as well as being conscious 
of a common destiny.” ' In general, the new 
school thought of the Union as organic rather 
than contractual in nature. Though not in all 
cases clearly expressed, it was evident, neverthe- 
less, that the contract philosophy was in general 
disrepute, and that the overwhelming tendency 
was to look upon the nation as an organic product, 
the result of an evolutionary process.* It would, 
of course, be a gross exaggeration to say that all 
those who maintained the supremacy of the Union 
repudiated the social-contract theory, but it is nec- 
essary to recognize the fact that the nation was 
something different in the popular mind and in 
the philosophic mind from the “ people ” of earlier 
days. Nation carried with it the idea of an ethnic 
and geographic unity, constituted without the con- 

* Miscellaneous Writings, II, 128. 

* See Jameson, Secs. 66-67; also Brownson, Hurd, Mulford, 
Woolsey to the same effect. John Draper, in Thoughts on the Future 
Civil Policy of America (1865), represents the extreme develop- 
ment of the organic theory. 


sent of any one in particular ; “ people ” was under- 
stood to be a body formed by a contract between 
certain individuals. The very fact that the Union 
was “pinned together with bayonets ” was enough 
to show that the doctrine of voluntary contract 
had faded into the background. The general 
idea was that the United States, by virtue of the 
community of race, interests, and geographical 
location, ought to be and is a nation ; and ought to 
be held together by force, if no other means would 
avail. This was the feeling that underlay the 
great national movement of 1861-1865, and it 
could not fail to be reflected in the philosophy of 
that time and in the succeeding interpretations of 
that event. 

It is also to be observed that in the new school 
the doctrine of sovereignty was subjected to impor- 
tant modifications. In the contest over national 
supremacy, the idea of a divided sovereignty was 
laid aside, and the unity and indivisibility of the 
supreme power strongly affirmed.^ As at an earlier 
time Calhoun rejected the compromise doctrine, so 
now the nationalistic school abandoned the idea, 
declaring that the sovereignty is one and indivisi- 
ble, and at the same time that it belonged to the 
nation. The idea of sovereignty was first strongly 
stated and clearly expounded hy Lieber, in his 
Political Ethics and later received general sup- 
port. In the narrower and legal sense, the rights 
* Webster spoke of the states as partly sovereign. Works, III, 321 



of the states were admitted, but in respect to 
the ultimate political sovereignty dispute practi- 
cally came to an end. The events of the Civil 
War firmly established the fact that the one and 
indivisible sovereignty belongs to the nation, or 
the Union as a whole.^ Calhoun’s idea of the 
nature of sovereignty was accepted, but it was 
applied in a manner wholly different from what 
he had expected or intended. 

The nationalistic theory assumes its most com- 
plete and scientific form at the hands of J. W. 
Burgess. The concepts of nation, sovereignty, 
and the theory of the " federal state," are in his 
works clearly and definitely stated, for almost the 
first time. “Nation” is defined as “a population 
of an ethnic unity, inhabiting a geographic unity,” 
and the application of this is made to various 
nationalities. The national state is presented as 
the highest product of recent political develop- 
ment, and is shown to be “ for the present and dis- 
cernible future, the organ of interpretation in last 
instance of the order of life for its subjects.”* 

* See Jameson, Brownson, Hurd, Woolsey, Burgess, in general 
agreement on this point. Brownson insisted that by the written 
Constitution, there is really no sovereignty in the United States, 0/. 
cit. Chap. XI. Philemon Bliss, Of Sovereignty (1885), declared 
that sovereignty has no application to a federal state; in fact is 
inapplicable to any constitutional state. See Lectures VII-XII. 

* Political Science and Comparative Constitutional Lam (1891); 
“ The Am, rican Commonwealth ” in the Political Science Quarterly, 
VoL I; review of Labaiid’s Staatsrecht, Ibid. Voi. Ill, 123. 



The doctrine of sovereignty is also strongly stated 
It is conceived as the "original, absolute, unlimited, 
universal power over the individual subject, and all 
associations of subjects;”^ an essential quality of the 
state, indeed the most indispensable mark of state- 
hood. “Really the state cannot be conceived,” says 
Burgess, “without sovereignty, i.e. without unlimited 
power over its subjects ; that is its very essence.” 
There is no other power, no association or organ- 
ization which can be conceived as limiting the state 
in its control over its subjects, for the authority 
which could exercise such power would itself be 
sovereign. It is true that the state may abuse its 
unlimited power, and wrong the individual under 
its control, but the national state is after all “ the 
human organ least likely to do wrong.” Moreover, 
this unlimited power on the part of the state 
necessitates no apology to civil liberty for its exist- 
ence, since this very power is the real guaranty 
of and security for individual liberty ; and hence 
the more completely and really sovereign the state 
is, the more secure is the liberty of the individual.^ 
From the principle that sovereignty is a unit, it 
follows that the so-called “ federal state ” is an im- 
possibility. What seems such, is either a number 
of sovereign states, having an equal number of 
local governments and a common central govern- 
ment, or one sovereign state having a central 

^ Political Science, I, 52. Cf. review of Laband. 

* Hid. I, 57. 



government and several local governments.^ There 
may be a federal system of government in which 
the sovereign state allots certain powers to the 
central government, and others to the local govern- 
ments. But in this case the sovereignty is in no 
way divided, and there is no federal state. Sov- 
ereignty, it is urged, “is entire or not at all,” and 
what remains to the former states under such 
a system of government is only “ the residuary 
powers of government,” which are by no means 
equivalent to sovereignty or any portion thereof. 
The sovereignty remains with the central state, un- 
divided and indivisible. 

Applying these principles to the United States, 
it is seen that the characteristics of a nation have 
been clearly evident here from the beginning, 
although not always accorded full recognition. 
The political system of the United States is a dual 
government, with the ultimate sovereignty resting 
in the nation.^ The nation has organized the cen- 
tral government, indicated a sphere of individual 
liberty, and given to the commonwealth residuary 
powers of government. The so-called "states” 
are not sovereign or semi-sovereign, but merely 
organs of government for the nation. “ It is no 
longer proper,” says Burgess, "to call them states at 

1 Ibid. I, 79 ff.; II, lo ff. 

* Cf. W. W. Willoughby, The Nature of the State, especially the 
interesting discussion in Chap. X on the nature of the composite 



all. It is in fact only a title of honor, without any 
corresponding substance.” The commonwealths 
are, strictly speaking, neither sovereign nor states, 
and to call them either is inaccurate and mis- 
leading. Attention is called to the diminishing 
importance of the “ states ” in our political system, 
in contrast with the rapidly increasing power and 
influence of the modern city, and serious doubt is 
raised as to the ability of the “ state ” to hold its 
place as a unit of government in our political sys- 
tem, if the influences operating during the last 
half century continue uninterrupted.^ 

The development of American political theory 
in relation to the nature of the Union may now be 
summarized as follows. At the time of the adop- 
tion of the Constitution, and for a considerable 
period thereafter, it was believed that the Union 
was of a peculiar and anomalous character, and 
that the sovereignty, so far as vested in govern- 
ment, was divided between the states and the 
United States. The real sovereign was thought 
to be the “ people,” but whether this meant the 

1 On the real place of the states see Political Science Quarterly^ 
Vol. I, “ The American Commonwealth,” On the relation between 
civil liberty and nationality, see Political Science^ I, 224. Woodrow 
Wilson maintains that the members of the Union are still genuine 
states, although their ” sphere is limited by the presiding and sov- 
ereign powers of a State superordinated to them , . . they have 
dominion; it has sovereignty.” An Old Master and other Political 
Essays (1893), 94- 



people of the United States as a whole or the 
people of the several states was left undetermined. 
As the contest between nationalism and states- 
rights became more acute, this middle position was 
abandoned by both parties. Calhoun contended 
that the sovereign people were the people of the 
several states, and that the sovereignty was, more- 
over, essentially indivisible. The states were hence 
sovereign communities, and the general govern- 
ment had only the powers delegated to it by them. 

On the other hand, the nationalist position was 
defended by Webster, who declared that the Con- 
stitution was adopted by the people of the United 
States as a whole, by means of an agreement as 
binding as the social contract. After the war had 
settled the vexed question of secession, the new 
school of nationalists developed and strengthened 
the earlier doctrine. The argument from the let- 
ter of the law was less emphasized and the consid- 
eration of social and political facts made more 
conspicuous. The nation was declared supreme, 
but this differed from the earlier “ people ” in that 
the contract idea was largely eliminated, and the 
organic and evolutionar}'^ character of the nation 
given greater attention. Calhoun’s doctrine of the 
indivisibility of sovereignty was accepted, but sover- 
eignty was claimed for the Union to the exclu- 
sion of the states, which were relegated to the 
position of organs of the nation. Differences of 
opinion appeared as to the exact location of the 



sovereignty, whether with the nation as an aggre- 
gation of individuals or as an aggregation of states; 
but the sovereignty of the Union was undisputed. 

Looking back over the development of the 
United States, a great growth in national spirit 
and sentiment is at once observed. In 1787. the 
general attitude toward the central government 
was that of suspicion and distrust, if not of open 
hostility. Liberty was regarded as local in char- 
acter, and the states as the great champions of 
the individual. The greater the power of the cen- 
tral government, the greater the danger to the 
freedom of the citizen. “ Consolidated ” govern- 
ment was considered as equivalent to tyranny and 
oppression. A century of national development has 
reversed this attitude. The states are now looked 
upon with more suspicion than is the national gov- 
ernment, and it is frequently considered a matter 
of congratulation when a given subject falls under 
federal administration. It is no longer generally 
feared that human liberty is menaced by the fed- 
eral government, and protected only by the states. 
Denunciation of the United States as a “ consoli- 
dated fabric ” of “ aristocratical tyranny ” is sel- 
dom heard, but certain states are sometimes 
denominated as “ rotten boroughs.” The state has 
in fact in many cases become a less important unit, 
economically, politically, and socially than the city, 
and, on the whole, the tendency of this time is over- 
whelmingly national, both in fact and in theory. 



In the last half of the nineteenth century there 
appeared in the U nited States a group of political 
theorists differing from the earlier thinkers in re- 
spect to method and upon many important doc- 
trines of political science. The new method was 
more systematic and scientific than that which 
preceded it, while the results reached showed a pro- 
nounced reaction from the individualistic philoso- 
phy of the early years of the century,^ 

Much of the credit for the establishment of this 
new school belongs to Francis Lieber, a German 
scientist who came to this country in 1827, and, 
as an educator and author, left a deep impress on 
the political thought of America. His Manual of 
Political Ethics (1838-1839) and Civil Liberty and 
Self-Government (1853) were the first systematic 
treatises on political science that appeared in the 
United States, and their influence was widespread.* 

> The discussion of the two preceding chapters has partly antici- 
pated the doctrines here conadeted. 

“ See also the Miscellaneous Writings of Lieber, edited by D. C 
Gilman, also I-egal and Political Hermeneutics (1837). an 

account of Lieber’s life, see The Life and Letters of Francis Litier, 
by T. S, Perry; also Francis Lieber, by L. R. Harley. 

X « 


Following Lieber, came a line of American politi- 
cal scientists, many of whom were trained in 
German schools, and all of whom had acquired 
a scientific method of discussing political phe- 
nomena. Among the most conspicuous figures in 
the new school are Theodore Woolsey, whose 
Political Science appeared in 1877, and John VV. 
Burgess, w-ho wrote, in 1890, Political Science and 
Comparative Constitutional Law, and a number of 
others who have contributed materially to the de- 
velopment of the subject.^ 

The method of these authorities has already 
been indicated, and need not be discussed at 
length. The significant fact about it is the change 
from the rather haphazard style of discussing polit- 
ical theory in earlier days to a more scientific way 
of approaching the questions of politics. A far 
more thorough knowledge of history and a broader 
comparative view of political institutions are con- 
spicuous in the new system. 

^ AmODg these should be mentioned those writers who were con- 
spicuous at the close of the Civil War, such as Brownson, Jameson, 
Mulford, Hurd, and others. Somewhat later come A. L. Lowell, 
Essays on Government Woodrow Wilson, The .S/a/r (1889), 

and An Old Master and Other Political Essays (1893^; J* 
Goodnow, especially in Politics and Administration (1900); W. W. 
Willoughby, The Nature of the State (1896), and Social Justice 
(1900); see also the works later cited. In the Political Science 
Quarterly^ the Annals of ike American Academy of Political and 
Social Science, the American Historical Peview, the Yale Review, 
and the American Journal of Sociology are found numerous coit 
tributlons to the literature of political science. 



The doctrines of these men differ in many im- 
portant respects from those earlier entertained. 
The individualistic ideas of the “ natural right ” 
school of political theory, indorsed in the Revo- 
lution, are discredited and repudiated. The notion 
that political society and government are based 
upon a contract between independent individuals 
and that such a contract is the sole source of polit- 
ical obligation, is regarded as no longer tenable. 
Calhoun and his school had already abandoned 
this doctrine, while such men as Story had seen the 
need of extensive qualification of it. Objections 
to the social contract were strongly urged by Lie- 
ber,' and were later more fully and clearly stated by 
others. In Lieber’s opinion, the “ state of nature ” 
has no basis in fact. Man is essentially a social 
creature, and hence no artificial means for bring- 
ing him into society need be devised. Lieber con- 
demned the contract theory as generally held, on 
the ground that it was both artificial and inade- 
quate. Such an explanation of the origin of the 
state can be regarded as true only in the sense 
that every political society is composed of indi- 
viduals who recognize the existence of mutual 
rights and duties. Only in the sense that there 
is a general recognition of these reciprocal claims 
can we say that the state is founded on contract; 
and this, of course, is far from what the doctrine 
is ordinarily taken to mean. As a matter of fact; 

^ Political EiJkicj, I, s88 ff. (sd edition, 1890). 


the state may originate, and has originated, Lieber 
said, in a variety of ways, as, for example, through 
force, fraud, consent, religion. 

Still more strongly is the opposition to the 
social-contract theory stated by Burgess. The 
hypothesis of an original contract to form the 
state is, as he reasons, wholly contrary to our 
knowledge of the historical development of politi- 
cal institutions. The social-contract theory as- 
sumes that “the idea of the state with all its 
attributes is consciously present in the minds of the 
individuals proposing to constitute the state, and 
that the disposition to obey law is universally estab- 
lished.” ^ These conditions, history shows, are not 
present at the beginning of the political develop- 
ment of a people, but are the result of long growth 
and experience. This theory therefore cannot 
account for the origin of the state. Its only pos- 
sible application is in changing the form of the 
state, or in cases when a state is planted upon 
new territory by a population already politically 

In the refusal to accept the contract theory as 
the basis for government, practically all the politi- 
cal scientists of note agree. The old explanation 
no longer seems sufficient, and is with practical 

> Political Science, I, 62. With Burgess compare Woolsey, 
Brownson, Jameson, Wilson, Mulford, Willoughby, to the same 
effect. See the comprehensive discussion in Willoughby, T/it 
Nature of the State, Chaps. II-Vl 



unanimity discarded.^ The doctrines of natural 
law and natural rights have met a similar fate. 
In Lieber’s political philosophy, it is true, the con- 
cept of natural law was still defended. The law 
of nature he defined as “ the body of rights which 
we deduce from the essential nature of man.” * The 
great axiom of natural law is, “ I exist as a human 
being ; therefore, I have a right to exist as a human 
being.” Under this natural law, there are certain 
natural rights, or as Lieber preferred to call them, 
“ primordial rights,” ^ which are inherent in the in- 
dividual and inalienable by him. But even Lieber, 
with his leaning toward the old theory, did not 

1 F. M. Taylor, in The Right of the State to be (1891), defends 
a concept of natural law. 

* Political Ethics, I, 68. 

^ Ibid. I, 177. Cf. Woolsey, Political Science, Vol. I, Chap. I. 
In his Civil Liberty and Self-Government Lieber distinguished be- 
tween what he called “Anglican” liberty and “Galilean” liberty. 
The Anglican idea of liberty is that of a sphere of immunity from 
interference, protected by guaranties “ at certain points where the 
experience of the race has shown the individual to be most in 
danger of attack.” The Gallican idea is that all must share equally 
in voting power, and that the authority of a government based on 
universal suffrage may be indefinite in e.xtent. One idea is that 
men are free when they are protected in a certain sphere against 
all encroachment, private or public; the other idea is that freedom 
consists in equal suffrage, no matter what the character of the gov- 
ernment so based may be. This he thought was the great differ- 
ence between the English and the French idea of liberty. It is 
Interesting to observe that Benj. Constant, a famous French publi- 
cist of the early part of the century, made the same comparison be- 
tween the liberty of the ancients and that of the moderns, among 
whom be included, of coarse, the French. 


interpret the doctrine of natural rights as the seven- 
teenth and eighteenth century revolutionists under- 
stood it, and this he was very careful to point out. 

By the later thinkers the idea that men possess 
inherent and inalienable rights of a political or 
quasi-political character which are independent of 
the state, has been generally given up. It is held 
that these natural rights can have no other than an 
ethical value, and have no proper place in politics. 
“ There never was, and there never can be,” says 
Burgess, “any liberty upon this earth and among 
human beings, outside of state organization.” ^ 
In speaking of natural rights, therefore, it is essen- 
tial to remember that these alleged rights have no 
political force whatever, unless recognized and en- 
forced by the state. It is asserted by Willoughby 
that “ natural rights ” could not have even a moral 
value in the supposed “ state of nature ” ; they 
would really be equivalent to force and hence 
have no ethical significance.^ 

In this connection it is interesting to notice the 
restatement of the theory of “ natural rights ” as 
made by Giddings.® Disclaiming any connection 
with the earlier forms of this theory, he under- 

* Political Science, I, 88. 

* See The Nature of the State, 109 ; see also Social Justice, 
dap. VlII, Cf. C. G. Tiedeman, The Unwritten Constitution of 
the United States, Chap. VI ; Lyman Abbott, The Rights of Man. 

’ Franklin H. Giddings, Principles of Sociology, 418-419 (ist edi- 
tion, 1896). Cf. Spencer, Principles of Sociology ; E. A. Ross, Social 
Control, 421. 


stands by natural rights those which are natural 
in the scientific sense of the term. In this field 
“ natural ” means, “ that which is, on the whole, 
in harmony with the conditions of existence.” On 
this basis, Giddings defines natural rights as, “ so- 
cially necessary norms of right, enforced by natural 
selection in the sphere of social relations.” Natural 
rights, as thus defined, are the foundation of both 
political and moral rights, and ultimately determine 
the character of both. This definition, it will be ob- 
served, is as destructive of natural rights in the ethi- 
cal sense as of natural rights in the political sense. 

The present tendency, then, in American political 
theory is to disregard the once dominant ideas of 
natural rights and the social contract, although 
it must be admitted that the political scientists are 
more agreed upon this point than is the general 
public. The origin of the state is regarded, not as 
the result of a deliberate agreement among men, 
but as the result of historical development, instinc- 
tive rather than conscious ; and rights are consid- 
ered to have their source not in nature, but in law. 
This new point of view involves no disregard of 
or contempt for human liberty, but only a belief 
that the earlier explanation and philosophy of the 
state was not only false but dangerous and mis- 

The modern school has, indeed, formulated a 
new idea of liberty, widely different from that 
taugTit in the early years of the Republic. The 


“ Fathers ” believed that in the original state of 
nature all men enjoy perfect liberty, that they 
surrender a part of this liberty in order that a 
government may be organized, and that therefore 
the stronger the government, the less the liberty 
remaining to the individual. Liberty is, in short, 
the natural and inherent right of all men ; gov- 
ernment the necessary limitation of this liberty. 
Calhoun and his school, as it has been shown, repu- 
diated this idea, and maintained that liberty is not 
the natural right of all men, but only the reward 
of the races or individuals properly qualified for 
its possession. Upon this basis, slavery was de- 
fended against the charge that it was inconsistent 
with human freedom, and in this sense and so 
applied, the theory was not accepted outside the 
South. The mistaken application of the idea had 
the effect of delaying recognition of the truth in 
what had been said until the controversy over 
slavery was at an end. 

The Revolutionary idea of the nature of liberty 
was never realized in actual practice, and recent 
political events and political philosophy have com- 
bined to show that another theory of liberty has 
been generally accepted. The new doctrine is best 
stated by Burgess. By liberty he understands 
“ a domain in which the individual is referred to 
his own will, and upon which government shall 
neither encroach itself nor permit encroachments 
from any other quarter.” Such a sphere of action 



is necessary for the welfare and progress both of 
state and of individual. It is of vital importance 
to notice, however, that liberty is not a natural 
right which belongs to every human being without 
regard to the state or society under which he lives. 
On the contrary, it is logically true and may be 
historically demonstrated that “the state is the 
source of individual liberty.”^ It is the state 
that makes liberty possible, determines what its 
limits shall be, guarantees and protects it. In 
Burgess’s view, then, men do not begin with com- 
plete liberty and organize government by sacrific- 
ing certain parts of this liberty, but on the contrary 
they obtain liberty only through the organization 
of political institutions. The state does not take 
away from civil liberty, but is the creator of liberty 
— the power that makes it possible. 

Liberty, moreover, is not a right equally enjoyed 
by all. It is dependent upon the degree of civili- 
zation reached by the given people, and increases 
as this advances. The idea that liberty is a natu- 
ral right is abandoned, and the inseparable connec- 
tion between political liberty and political capacity 
is strongly emphasized. After an examination of 
the principle of nationality, and the characteristic 
qualities of various nations or races, the conclusion 
is drawn that the Teutonic nations are particularly 
endowed with political capacity. Their mission in 
the world is the political civilization of mankind. 

* Political Science, I, 175. 


From this as a premise are deduced further con- 
cltisions of the utmost importance.^ The first of 
these is that in a state composed of several nation- 
alities, the Teutonic element should never surren- 
der the balance of power to the others. Another 
is that the Teutonic race can never regard the ex- 
ercise of political power as a right of man, hut it 
must always be their policy to condition the exer- 
cise of political rights on the possession of political 
capacity. A final conclusion is that the Teutonic 
races must civilize the politically uncivilized. They 
must have a colonial policy. Barbaric races, if 
incapable, may be swept away ; and such action 
“ violates no rights of these populations which are 
not petty and trifling in comparison with its tran- 
scendent right and duty to establish political and 
legal order everywhere.” On the same principle, 
interference with the affairs of states not wholly 
barbaric, but nevertheless incapable of effecting 
political organization for themselves, is fully jus- 
tified. Jurisdiction may be assumed over such a 
state, and political civilization worked out for those 
who are unable to accomplish this unaided. This 
propaganda of political civilization, it is asserted, 
is not only the right and privilege, but the mission 
and duty, the very highest obligation incumbent 
on the Teutonic races, including the United States. 
Such action is not unwarrantable or unjustifiable 
interference with the affairs of those who should 

' Political Science, I, 44 et seq. 



rightly be left unmolested, but is the performance 
of the part marked out for the Teutonic nations 
in the world’s development.^ 

Closely related to the theory of liberty is the 
doctrine as to the purpose or function of the state. 
In the days of the Revolution, it was thought that 
the end of the political society is to protect the life, 
liberty, and property of its citizens, and beyond this 
nothing more. The duty of the state was summed 
up in the protection of individual rights, in harmony 
with the individualistic character of the philosophy 
of that day. In the theory of Lieber, this idea was 
broadened out, and, as he phrased it, the duty 
of the state is to do for man : first, what he 
cannot do alone ; second, what he ought not to do 
alone ; and third, what he will not do alone.® In 
more recent times there has been in America a de- 
cided tendency to react against the early “ protec- 
tion theory ” of government, and to consider 
that the aim of the state is not Limited to the main- 
tenance of law and order in the community and 

^ It is a striking fact that within less than a decade the United 
States embarked on a colonial policy, invoking in justification the 
very principles which have just been analyzed. In the extended 
discussions of the colonial policy of the United States during the 
past four years, there has been no clearer formulation of the domi- 
nant theory than this. Burgess himself believes that the United 
States is not yet ready for the propaganda of political civilization, 
but should devote itself to its ovrn problems of government and 
liberty. See injra^ p, 318. 

• Political Ethics, I, Chap. V. 


defence against foreign foes. In the new view, the 
state acts not only for the individual as such, but 
in the interests of the community as a whole. It is 
not limited to the negative function of preventing 
certain kinds of action, but may positively advance 
the general welfare by means and measures ex- 
pressly directed to that end. This opinion is shared 
by such authorities as Woolsey, Burgess, Wilson, 
Willoughby and others. To these thinkers it ap- 
pears that the duty of the state is not and cannot 
be limited to the protection of individual interests, 
but must be regarded as extending to acts for the 
advancement of the general welfare in all cases 
where it can safely act, and that the only limitations 
on governmental action are those dictated by ex- 
perience or the needs of the time. 

Woolsey took the position that the state cannot 
be limited to restraining individuals from injuring 
each other, but may justly act positively for the 
general welfare, “The sphere of the state,” he 
said, “ 7 nay reach as far as the nature and needs of 
man and of men reach ; ” and this each people 
decides for itself in accordance with its own pecul- 
iar conditions. In general the action of the state 
falls under four groups : i, the redress of wrongs ; 
2, the prevention of wrongs ; 3, a degree of care 
for the outward welfare of the community, as in 
respect to industry, roads, and health ; 4, the culti- 
vation of the spiritual nature, “ by educating the 
religious nature, the moral sense, the taste, the in- 


tellect.” ^ The general limitation on the power oi 
the state is that there shall be no act in restraint 
of the individual, except where there is imperative 
reason for such restriction. He also enumerates 
a series of individual rights which no just govern- 
ment ought to take away. 

Woodrow Wilson asserts that the objects of gov- 
ernment are the objects of organized society. The 
great end for which society exists is “ mutual aid 
to self-development,” and this purpose, therefore, is 
the proper function of government. With particu- 
lar reference to modern industrial conditions, a 
distinction is drawn between what is termed " in- 
terference” on the part of the state, and what is 
called “ regulation,” by which is meant an “ equali- 
zation of conditions in all branches of endeavor.” 
The limit of state activity is that of “ necessary 
cooperation” — the point at which such enforced 
cooperation becomes a convenience rather than an 
imperative necessity. This line is difficult to 
draw, but may nevertheless be drawn. In gen- 
eral, we may lay down the rule that “ the state 
should do nothing which is equally possible under 
equitable conditions to optional associations."^ 

A still broader view is that taken by Burgess in 
his discussion of the ends of the state. These may 
be considered, he says, under three heads : the 

* Political Science, Book II, Chap. IV, “Sphere and Ends of the 

* The State, Sec. 127J ff. 


primary, the secondary, and the ultimate. The 
ultimate end of the state is defined as the “ per- 
fection of humanity, the civilization of the world ; 
the perfect development of the human reason and 
its attainment to universal command over indi- 
vidualism ; the apotheosis of man.” ^ This end can 
be realized, however, only when a world-state is or- 
ganized, and for this, mankind is not yet ready. 
Men must first be organized into national states, 
based on the principle of nationality. The proxi- 
mate ends of the state are the establishment of 
government and liberty. The state must first of 
all establish peace and order ; and in the next place 
mark out a sphere of liberty for the individual 
and later for associations. These are then the 
great ends of the state ; the establishment of gov- 
ernment and of liberty, so that the national genius 
may find proper expression ; and, finally, the per- 
fection of humanity. These objects must be 
followed, moreover, in an historical order which 
cannot be successfully reversed. Government 
must precede liberty, government and liberty must 
precede the final purpose for which the state exists. 
In the present stage of development, only the 
realization of government and liberty through the 
national state are proper objects of state activity. 
Beyond this broad outline Burgess makes no other 
attempt to mark out the limits of the operation either 
of state or of government. 

^ Political Science, Vol. I, Book II, Chap. IV. 


An interesting study in this direction has been 
made by Willoughby.^ The functions of the state 
are classified into three groups, of which the first 
contains those powers which concern the life of the 
state and the preservation of internal order, the 
second those which are concerned with human 
liberty, and the third those which have to do with 
the general welfare. A second method of classify- 
ing the aims of the state is to divide them into the 
essential and the non-essential functions. The 
essential functions concern the protection of the 
state against foreign interference, the preservation 
of the national life, and the maintenance of internal 
order. The non-essential functions include the 
“ economic, industrial, and moral interests of the 
people.” They are assumed by the state not 
because they are necessary but because they are 
advisable. The non-essential functions are sub- 
divided into the socialistic and the non-socialistic. 
The first class, the socialistic, includes only activ- 
ities which could be exercised by the people if left 
to private initiative, as the ownership and operation 
of railroads, or telegraph and telephone systems. 
The non-socialistic functions are “those which, if 
not assumed by the state, would not be exercised 
at all ; ” as, for example, such work as that per- 
formed by educational and labor bureaus. It is 
denied that any limit can be set to governmental 

1 The Nature of the State, Chap. XII. See also Social Justice, 
Chap. IX. 


activity, and the contention is made that “each 
function must rest on its own utilitarian basis.’' 
This specific determination belongs to the domain 
of government rather than of political theory, 
Willoughby predicts, however, that with the de- 
velopment of civilization and the increasing com- 
plexity of industrial interests, the activity of the 
state must continue to expand. 

Among the authorities on political economy, the 
early idea of laissez faire, at least in its extreme 
form, has been subjected to severe criticism, and 
in general has been abandoned. The new position 
is a mean between socialism and extreme individ- 
ualism. Francis A. Walker characterized the situa- 
tion when he spoke of “ those of us who discerned 
the coming of a storm and removed ourselves and 
our effects from the lower ground of an uncom- 
promising individualism to positions somewhat 
more elevated and seemingly secure.” ^ He de- 
clared, and this statement is typical of the general 
attitude of the economists, that he believed "a 
large practical gain to the order of society and the 
happiness of its constituent members would irr 
the long result accrue from the interposition of 
the state.” ^ Every proposal, however, for the ex- 

' Discussions in Economics and Statistics (1899), I, 344. 

’ Ibid. II, 271. In the American Economic Association (1885) 
there was an interesting discussion on this point. Among other 
statements, that of Edmund J. James was significant : “ We do not 
regard [the state] as a merely negative factor, the influence of which 
is most happy when it is smallest, but we recognize that some of 



tension of the powers and duties of the state should 
be subjected to careful scrutiny, and the burden of 
proof should be thrown upon those who advocate 
the innovation. Furthermore, no changes should 
be made in the direction of state regulation for tran- 
sient causes or doubtful objects. The principle of 
action would seem to be to consider each case on 
its own merits, without reference to the question of 
individualism or socialism. In cases where the 
economic principle of competition appears to be 
threatened, the interference of the state seems to 
be most cheerfully welcomed. ^ 

From a consideration of these various opinions, 
it is evident that the modern idea as to what is the 
purpose of the state has radically changed since 
the most necessary functions of a civilized society can be performed 
only by the state, and some others most efficiently by the state; that 
the state, in a word, is a permanent category of economic life, and not 
merely a temporary crutch which may be cast away when society 
becomes more perfect.” Publications of the American Economic 
Association, Vol. I, 26. 

An interesting attempt to lay down definite principles respecting 
the function of government has been made by H. C. Adams, in The 
Relation of the State to Industrial Activity (1887). His funda- 
mental proposition is that neither the English idea of the indi- 
vidual as supreme, nor the German idea of the state as supreme, is 
the correct one. Both state activity and individual activity are in 
reality functions of society — the “living and growing organism — 
the ultimate thing disclosed by analysis of human relations.” The 
point of view in the discussions of the sphere and duty of govern- 
ment should be therefore that of the society, rather than that of the 
individual or the state. 

^ See in this connection Richard T. Ely, Socialism and Sociat 
Reform (1894). 



the days of the “ Fathers.” They thought of the 
function of the state in a purely individualistic 
way; this idea modern thinkers have abandoned, 
and while they have not reached the paternalistic 
or socialistic extreme, have taken the broader social 
point of view. The “ protection ” theory of the state 
is on the decline ; that of the general welfare is in 
the ascendant. The exigencies of modern indus- 
trial and urban life have forced the state to in- 
tervene at so many points where an immediate 
individual interest is difficult to show, that the old 
doctrine has been given up for the theory that the 
state acts for« the general welfare. It is not admit- 
ted that there are no limits to the action of the 
state, but on the other hand it is fully conceded 
that there are no “ natural rights ” which bar the 
way. The question is now one of expediency 
rather than of principle. In general it is believed 
that the state should not do for the individual what 
he can do as well for himself, but each specific 
question must be decided on its own merits, and 
each action of the state justified, if at all, by the 
relative advantages of the proposed line of conduct. 

At yet another point the drift away from the 
Revolutionary theory is evident; namely, in rela- 
tion to the division of governmental powers. The 
generally accepted theory since the eighteenth cen- 
tury has been that all governmental powers may 
be divided into the legislative, the executive, and 



the judicial; that in every free government these 
powers should be carefully separated and a dis- 
tinct set of officers should administer each class of 
them. This has long been regarded as a “ funda- 
mental ” of political theory and of constitutional 
law as well.i Viewing the situation from the 
standpoint of administrative law, however, a new 
line of division has been recently drawn by Good- 
now.* In Politics and Administration Goodnow 
criticises the theory of the tripartite division of 
governmental powers as an “ unworkable and un- 
applicable rule of law,” and proposes to substitute 
another classification in its place. The primary 
functions of the state may be divided, he maintains, 
into politics, " the expression of the will of the 
state,” and administration, “ the execution of that 
will.” “ Politics ” includes constitution-making, 
legislation, selection of governmental officers, and 
the control of the function of executing the will of 
the state. This function of politics is discharged by 
constitutional conventions, legislatures, the judici- 
ary, and the political parties. “Administration,” 
on the other hand, may be divided into two classes : 
the administration of justice, commonly called the 
judicial authority, and the administration of govem- 

^ See William Bondy, " The Separation of GoTemmental 
Powers,” in Columbia Studies in History, Economics, and Psehlie 
Law, Vol. V. 

* Frank J. Goodnow, Politics and Administration (1900) 
Comparative Administrative Law (1893). 



rnent, which includes what is ordinarily termed the 
executive authority, together with other functions 
of a quasi-judicial or semi-scientific or statistical 

The method of control over the administration 
is discussed, and the highly decentralized system 
adopted in Revolutionary times is subjected to 
severe criticism. The conclusion drawn is that 
the present administrative system of the various 
states should be much more centralized and consol- 
idated than at present;' and in the second place 
that the political party should receive legal recog- 
nition as a governmental organ. The fear of cen- 
tralization which our fathers entertained is, he holds, 
under modern conditions no longer reasonable. 
It is a “ battle-cry suitable only to an age that has 
already passed away,” ^ — “ a bogie which has been 
conjured up by designing persons conscious that 
a proper organization of our administrative system 
will work to their disadvantage.” ® The party, fur- 
thermore, must no longer be regarded as a purely 
voluntary association but as a political body sub- 
ject to public regulation and control, constituting, 

^ Politics and Adminisiraiiottf Chaps. II, IV. 

® Ibid, 261. 

^ Ibid, 130, Cf. Ernst Freund, “The Law of Administration in 
America,” in the Political Science Quarterly^ Vol. IX. See also 
“ Public Administration in Massachusetts,” by Robert H. Whitten, 
in Columbia University Studies, Vol. VIII, No, 4; “The Central- 
ization of Administration in New York State,” by John A. Fairlie, 
Ibid, Vol. IX, No. 3. 


in fact, a part of the government. In this way 
the party may be made responsible, and the 
danger, that under a more centralized system 
party bosses would wield still greater power, may 
be averted.^ 

Another interesting phase of American political 
theory is the effort made by numerous thinkers to 
distinguish between “state” and “government.” 
From the earliest days of the Republic, the differ- 
ence between “ people ” and “ government ” has 
been emphasized, and the assertion made that sov- 
ereignty rests with the “people” as distinguished 
from the "government.” This idea was more sys- 
tematically stated by Lieber, who made a distinc- 
tion between state and government. The state in 
his opinion is the jural or political society which 
the whole community constitutes. The govern- 
ment is the instrument through which the political 
society acts,' when it does not act directly.^ 

In the theory of Burgess, this distinction has 
been made a cardinal principle of political science 
and of public law. The state is “ a particular por- 
tion of mankind viewed as an organized unit.” The 
government is a particular form of organization 
through which the state acts. In early times, he 
points out, there was no clear distinction made be- 
tween the state and the government; they were, 

^ On the function of political parties, see H. J. Ford, The Rin 
rind Growth of American Polities, Chaps. XXIII-XXV. 

^ Political Ethics, I, 238; Brownson, op. cit. 174-175. 


in fact, blended in the person of the king ; but in 
modern times the distinction has become clearly 
evident, and the government need not now be con- 
fused with the political society. In the United 
States, in particular, this has been recognized and 
embodied in our system of public law. Here we 
have a separate and distinct organization for state 
and government in their several capacities. 

Burgess makes several important applications 
of this doctrine to political problems. In the 
classification of political systems, for example, the 
recognition of this distinction between state and 
government is of great advantage. The difficulty 
involved in democratic Caesarism is on this basis 
easily explained, for such a system is really a 
combination of democratic state with monarchic 
government. In the same way we may have a 
democratic state with an aristocratic government, 
or an aristocratic state with a monarchic govern- 
ment. Since the state and the government are dis- 
tinct, any combination of monarchic, aristocratic, 
and democratic elements is possible. 

Application of this idea is also made by Burgess 
to the vexed question of sovereignty. The strong- 
est objection to the recognition of the absoluteness 
of sovereignty arises, it is pointed out, from the 
general failure of publicists to distinguish clearly 
between “state” and “government.” One fears 
to place unlimited power in the hands of the ordi- 
nary government, and failing to distinguish between 


this and the state, declares against supreme power 
in general. In strict analysis, however, the “ gov- 
ernment is not the sovereign organization of the 
state. Back of the government lies the constitution 
and back of the constitution the original sovereign 
state which ordains the constitution both of govern- 
ment and liberty.” Recognizing the fact that the 
sovereignty belongs not with the ordinary govern- 
ment or administration, but with the state in su- 
preme organization, the admission of the character 
of the ultimate power presents fewer and less for- 
midable difficulties. This double organization is a 
feature in which American public law has advanced 
beyond that of the states of Europe, since here is 
to be found an organization of the government in 
its local and central branches, and then, above 
these governments, the organization of the state 
in its supreme and all-controlling capacity. Thus, 
in our political system, government and state are 
distinctly organized, and have distinct methods of 

The reflection of American political theorists 
on the problems of modern democracy has not up to 
the present time taken on scientific form. In fact, 

1 A similar distinction is made by Woodrow Wilson, although in 
his theory the line is drawn between “ society ’’ and “ government,” 
while the terms “ state ” and “ government ” are used interchange- 
ably. Society, in his phrase, is termed an “ organism," and gov- 
ernment is characterized as an “organ.” Tie State, Secs. 1160, 
1269-1273. Cf. Willoughby, The Nature of the State, 8. Wil 


the two great studies of American democracy have 
been made respectively by a Frenchman and an 
Enghshman : Democracy in America by De Tocque- 
ville and The American Cofnmonwealth by James 
Bryce. There has been no profound and compre- 
hensive study of the facts and the philosophy of 
modern democracy by an American thinker. In 
recent years, however, considerable attention has 
been given to the nature and meaning of demo- 
cratic institutions, and there have been numerous 
discussions centering around the problems of 
democracy. The weakness of popular government 
in our large cities has been considered by a num- 
ber of thinkers ; among the most conspicuous is 
Godkin, in his Unforcscc7i Tendencies of Democracy 
and Pi'oblevis of Modern Democracy} The relation 
of democratic government to modern industrial com- 
binations has been considered by Moses in his sug- 
gestive sketch on Democracy a7id Social Growth} 
The compatibility between democracy and colonial 
government has been discussed, among others, by 
Giddings in Democracy and Empu-e. Eliot has 
pointed out certain contributions made by Ameri- 

loughby distinguishes between state and government on the ground 
that, strictly speaking, state is “an abstract term,’* whereas govern- 
ment is “ emphatically concrete ” — a distinction corresponding, he 
says, to that between a person and his bodily frame. For his criti- 
cism of Burgess’s theory, see op, cit, 206, note. 

^ E. L. Godkin, Unforeseen Tendencies of Democracy (1898) 
Problems of Modern Democracy (1896). 

2 Bernard J. Moses, Democracy and Social Growth- (1898). 



can democracy to civilization,^ and Lowell has 
shown the relation between democracy and the 
constitution.® Numerous other interesting and use- 
ful contributions have been made, but in none or 
all of them is there found that complete study 
of modern or American democracy which it is 
desirable to have. 

Within the last few decades, no little attention 
has been given in America to the study of social 
forces in the general sense of the term. These in- 
vestigations have been directed primarily to the 
observation and classification of social facts, but 
incidentally contributions have been made to the 
solution of certain problems of political theory. 
Attention has already been called to the restatement 
of the doctrine of natural rights at the hands of 
Giddings.® In his Dynamic Sociology (1883), Lester 
F. Ward^ lays great emphasis on a more scientific 
direction of social forces. The science of society, 
he urges, should lead up to the art of society, 
which in his terminology is known as “ collective 
telesis.” There ought to be a transformation of 

^ Charles William Eliot, American Contributions to CivilisaHon 


2 A. L. Lowel), Sssays on Government (1892). See also Gazna> 
liel Bradford, The Lesson of Popular Government (1899); Jane 
Addams, Democracy and Social Ethics (1902); J. H. Hyslop, De^ 
mocracy^ A Study of Government (1899); David Starr Jordan, 
Imperial Democracy (1899). ® See ante^ p. 3 ^ 0 * 

^ See also “ Collective Telesis,” in the American Journal oj 
Sociology, Vol, II. 


government from its present unscientific and un- 
progressive methods to "a central academy of 
science which shall stand in the same relation to 
the control of men, in which a polytechnic insti- 
tute stands to the control of nature.” Government 
would be then, in truth, “ the legislative application 
of sociological principles,” and this is what he 
understands by “ sociocracy ” — “ the scientific 
control of social forces by the collective mind of 
society for its advantage.” 

Following the same general method, John R. 
Commons has worked out a somewhat elaborate 
account of the sociological view of sovereignty 
which he states, of course, in social rather than 
political terms. ^ The most suggestive of these 
contributions, however, is that made by Ross in his 
Social Control, 1901.* Believing that a study of 
social control should not be limited to an examina- 
tion of laws alone, Ross has instituted a compre- 
hensive study of all social forces that go to make 
up the control of the group over the individual. 
To this end the work is divided into a study of the 
grounds of control, the means of control, and the 
system of control. Under the grounds of control 
are discussed the rdle of sympathy, sociability, the 
sense of justice, and of individual reaction as bases 
of social order. Under the means of control, there 

' American Journal of Sociology, Vol. V. 

’ E. A. Ross, Social Control, A Survey of the Foundations oj 



is given a description and analysis of the various 
forces, by means of which the society obtains social 
obedience and effects social control. These instru- 
mentalities are partly legal, as law, belief, ceremony, 
education, illusion ; and partly ethical, as public 
opinion, suggestion, art, and social valuation. The 
complicated machinery for producing obedience on 
the part of the individual to the will of the group 
is subjected to careful examination, with results 
that are at times startling. Ross maintains, how- 
ever, that the full understanding of these subtle 
methods need not lead to any such disastrous 
consequences as those drawn by the Anarchists. 
Simply because the “X-ray shows control in all 
social tissues and the spectroscope reveals the 
element of collective ascendancy in almost every 
culture product,” it does not follow that all these 
tissues and products must be destroyed. A full 
comprehension of the facts of social control, while 
not wholly quieting to the individual thus controlled, 
need not lead to rebellion against this restraint. 

Under the system of control are examined such 
topics as class control, the vicissitudes of social 
control, the limits and criteria of control. The 
assertion is made that in the future the control of 
society will be secured largely through the instru- 
mentality of education — the best method of in- 
surance against the spirit of disobedience in the 
individual. In the same connection an effort is 
made to lay down certain canons or principles of 



social interference. Of these the most significant 
are ; “ Social interference should not be so pater- 
nal as to check the self-extinction of the morally 
ill-constituted ; ” and, “ Social interference should 
not so limit the struggle for existence as to nullify 
the selective process.” ^ 

In conclusion, it appears that recent political 
theory in the United States shows a decided ten- 
dency away from many doctrines that were held by 
the men of 1776. The same forces that have led 
to the general abandonment of the individualistic 
philosophy of the eighteenth century by political 
scientists elsewhere have been at work here and 
with the same result. The Revolutionary doctrines 
of an original state of nature, natural rights, the 
social contract, the idea that the function of the 
government is limited to the protection of person 
and property, — none of these finds wide acceptance 
among the leaders in the development of political 
science. The great service rendered by these doc- 
trines, under other and earlier conditions, is fully 
recognized, and the presence of a certain element 
of truth in them is freely admitted, but they are no 
longer generally received as the best explanation 
for political phenomena. Nevertheless, it must be 
said that thus far the rejection of these doctrines 
is a scientific tendency rather than a popular 
movement. Probably these ideas continue to be 

r Chap. XXX. 



articles of the popular creed, although just how- 
far they are seriously adhered to it is difficult to 
ascertain. As far as the theory of the function of 
government is concerned, it would seem that the 
public has gone beyond the political scientists, and 
is ready for assumption of extensive powers by the 
political authorities. The public, or at least a large 
portion of it, is ready for the extension of the func- 
tions of government in almost any direction where 
the general welfare may be advanced, regardless of 
whether individuals as such are benefited thereby 
or not. But in regard to the conception of natural 
right and the social-contract theory, the precise 
condition of public opinion is, at the present time, 
not easy to estimate. 



In conclusion of this study, a few words may be 
said upon the general characteristics of American 
political theory. It is evident from the preceding 
chapters that thus far there has been no remark- 
able development of political philosophy in the 
United States. Until recently, there has been no 
attempt at all at systematic discussion of the prob- 
lems of politics, and, although the new school has 
accomplished much, it has not yet developed a 
body of typical American political theory. It 
would be putting it strongly to say that there is no 
American political theory, but it is certainly true 
that very few contributions to systematic politics 
have been made by the great republic of the New 
World. Many of the characteristic features even 
of our own political system have received compara- 
tively little attention ; as, for example, democracy 
as an all-pervading influence in society and state, 
the rule of the majority, written constitutions, the 
relation between church and state. These ideas 
seem to be so generally accepted that argument 
or discussion is regarded as superfluous. They 
are articles of political faith, received with implicit 
confidence and trust. 



33 S 

In general, American political theory has been 
struck off in connection with controversies over 
specific subjects. The rights of man, the consent 
of the governed, the right of revolution, were dis- 
cussed in relation to the Revolution of 1776. The 
question of aristocracy, artificial and natural, was 
associated with the struggle between the Federal- 
ists and their opponents ; the effort to restrict the 
spread of slavery led to the discussion of the proper 
relation between unequal races under conditions 
which render coexistence on the same soil neces- 
sary. The great problem of the character of the 
Union gave rise to the examination of the nature 
of federal government, the essential marks of sov- 
ereignty, and the elements of nationality. In re- 
cent days, the territorial expansion of the United 
States again raises the problem of the consent of 
the governed, and the right relation between races 
of widely different capacity. But in all these in- 
stances the constitutional or legal aspects of the 
problem have been most freely and most fully dis- 
cussed, while the principles of political science have 
been the object of far less attention. The nature 
of the Union, for example, was much more thor- 
oughly and ably treated from the constitutional 
point of view than from that of political science ; 
or, to take another case, the constitutional phases 
of slavery extension were much more carefully 
studied than the question of human rights or of 
race relations. 


The causes of this scarcity of political theory 
are various. It may be urged that the lack of 
theory is due to the tendency of the American or 
the Englishman toward action rather than reflec- 
tion — to be practical rather than philosophical. 
In this connection it is well to remember, how- 
ever, that it was an English thinker, John Locke, 
who worked out the fundamental principles of the 
English, American, and French revolutions of the 
seventeenth and eighteenth centuries. Another 
Englishman, Edmund Burke, was the author of 
the most effective work written against those prin- 
tiples, and yet another Englishman, Thomas 
Hobbes, framed one of the strongest theoretical 
arguments in favor of absolutism. A more plau- 
sible explanation than inability to think abstractly 
is found in the argument that the tendencies of 
modern democracy are not yet fully enough devel- 
oped to make possible the formulation of political 
theory respecting these new conditions. From this 
point of view, the development of a typical Ameri- 
can theory is yet to come. 

It may further be questioned how far American 
political theory is dependent upon foreign sources 
lor its inspiration, and to which of these sources 
we are especially indebted. Some reference has 
been made to this in the discussion of the various 
schools, but a summary of these influences may 
not be inappropriate at this point. The great 
reservoir from which the Fathers drew was the 



English political theory of the preceding century 
— the ideas of Sydney, Locke, and the English 
Whig revolutionists. This was the origin of the 
fundamental doctrines to which the Patriots ad- 
hered. This body of ideas has had in the past, 
and still has, a great hold on the political thought 
of the American. Also of great influence on the 
course of American political speculation have been 
the individualistic theories of Mill and Spencer, 
which have been widely read and widely ac- 
cepted. Among jurists, -the theory of John Austin 
and the school of positive law has been the subject 
of frequent discussion, and has been very influ- 

Of French thinkers by far the strongest in- 
fluence exerted on American theory was that of 
Montesquieu, through the famous doctrine of the 
tripartite division of governmental powers. This 
proposition was readily taken up from the first, 
and remains to this day scarcely contested. The 
French Revolution gave a great impulse to the 
democratic movement in America, as did the revo- 
lutions of' 1830 and 1848, yet few of the doctrines 
of that day took deep root in American soil. 
Destutt de Tracy was recommended by Jefferson, 
but never was highly influential. One of the 
reactionaries against the French Revolution, De 
Maistre, has been sometimes referred to in the con- 
troversy over the nature of the Union, because of 
his statement of the theory that constitutions can- 


not be made offhand, but are the result of growth 
through long periods. The influence of Comte 
upon social and political science must be included 
in the summary of French influence upon Ameri- 
can thought. Upon the whole, it is evident 
that American theory has pursued its course with- 
out much regard to the political ideas current 
among the French. Doubtless the Revolution of 
1789 and the succeeding revolutions helped to 
strengthen the democratic impulse and tendency, 
for the influence of these movements was world- 
wide. But the immediate and direct effect of 
these events on American political thought, it is 
not easy to discover. The influence came in the 
form of a general stimulus rather than of particular 
doctrines or principles. 

In recent years the influence of the German 
political scientists has been most pronounced. 
This influence began with the work of Francis 
Lieber as an instructor in American schools and 
an investigator in the field of political science. 
In the movement toward the study of politics dur- 
ing the last few decades, the leaders, almost with- 
out exception, have been men trained in German 
schools, familiar with German methods, and pro- 
foundly influenced by German ideas. The work of 
such publicists as Gneist, Stein, Ihering, Bluntschli, 
Jellinek, and Holtzendorff is clearly evident in 
the method and thought of present day politi- 
cal scientists. So far as particular doctrines are 



concerned, the influence of the German schoox is 
most obvious in relation to the contract theory of 
the origin of the state and the idea of the function 
of the state. The theory that the state originates 
in an agreement between men was assailed by the 
German thinkers and the historical, organic, evo- 
lutionary idea substituted for it. The purpose of 
the state they have expanded from the “police 
theory” to that of general care for the interests 
of the community. Changes of American theory 
in this direction cannot, however, be attributed 
exclusively to the influence of the German school, 
for the same tendencies have been conspicuous in 
English and French theory, and m the case of the 
contract had already been developed by Calhoun 
and Story. It is interesting to observe at this point 
that as between the idea of “ natural rights ” — the 
German Naturrecht — and the Austinian theory, 
the general tendency in the United States has 
been to accept the doctrine that there is a body of 
natural rights semi-ethical, semi-political in nature. 
The idea that there are inalienable rights of man, 
quasi-political in character, has taken firm hold of 
the popular mind, and has not been dislodged by 
any of the numerous attacks upon this theory 
since the French Revolution. 

The chief foreign influences at work upon the 
American theory have been the English, the French, 
and the German. Of these it may be said that the 
French influence consists largely in the democratic 


impulse given during the days of the Revolution, 
the German contribution is chiefly in the direction 
of scientific method, and that the fundamental politi- 
cal ideas of the Americans have been deeply influ- 
enced only by the English thinkers, especially 
those of the seventeenth century. The present 
generation looks back to the Fathers and the 
Fathers looked back to the men of the preceding 

From a consideration of outside influence upon 
American ideas, we turn to an examination of the 
effect of American theory on other peoples. The 
genera) influence of American institutions and 
ideas has been great, but examples of specific doc- 
trines or particular men who have left their im- 
press on the political ideas of other countries are 
not easy to find. Such instances, although 
infrequent, are not, however, wholly wanting. 
Thomas Paine in reply to Burke, Calhoun on the 
rights of minoritie.s, Lieber on the idea of self-gov- 
ernment, are cases in point. Of special impor- 
tance also was the American theory of a federal 
union as expounded in the Federalist and by 
Webster and Calhoun. Particularly in connection 
with the German problem of national unity, these 
ideas were widely discussed. The Federalist 
theory of a double sovereignty was predominant 
in the school of which Waitz was the chief expo- 
nent, and Calhoun’s doctrine of the indivisibility 
of sovereignty is accepted by Max Seydel and 



those of his particularistic faith. American insti- 
tutions and ideas as described in the brilliant study 
of De Tocqueville (1835) were made familiar to 
Europeans, and in this way left their impress 
upon those peoples at a critical period in the 
history of constitutional government. In more 
recent times a like service has been rendered by 
James Bryce in his classic work on the American 

It goes without saying, that the mightiest influ- 
ence exerted by the United States in the domain 
of political science, has been due to the example 
of a democracy successfully working on a large 
scale. It would be a gross exaggeration to say 
without qualification that the constitutional re- 
forms of the nineteenth century were caused by 
the developments in America; but, on the other 
hand, it is clearly evident that the American 
Republic has been a powerful factor in the 
growth of constitutional democracy and of consti- 
tutional government in general. In Mexico and 
the South American republics, this influence is 
seen in institutions framed obviously after the 
American type. In European countries, the in- 
fluence is far less powerful, but even there it has 
been remarkable. Not always, or even often, tak- 
ing the shape of systematic theory, the democratic 
spirit and practice of the United States have, never- 
theless, made themselves felt in the development 
of free institutions. What has been said of demo- 


cratic government might also be said of federal 
government, for in this field the practical influence 
of the American system has been widespread. 
The systems of Germany, Canada, Australia, 
Mexico, and Brazil are sufficient evidence of this. 

In conclusion, it may be profitable to notice what 
has been the broad tendency of American politics, 
including the theoretical and the practical. Dur- 
ing the early period of our history the movement 
was steadily democratic. Using the suffrage as a 
standard, although this is not the only test that 
might be applied, it is evident that the Fathers 
were more democratic than the Puritans; the Jeffer- 
sonian democracy was more liberal than that of 
1776; the Jacksonian democracy went far beyond 
the Jeffersonian school; the Abolitionists extended 
the boundary lines farther yet; and the advo- 
cates of women’s suffrage have even surpassed 
this liberal provision. The political people were, 
roughly speaking, in the first stage the church- 
members, in the next the freeholders, in the third 
place the white male citizens, in the fourth period 
all adult males, and now tend to include the 
whole adult population.^ Property qualifications 
have disappeared, religious restrictions have fallen 
into disuse, popular election of officers has dis- 
placed the system of legislative choice, constitu- 
tions are now usually adopted by popular vote, and 

^ The recent tendency to require educational or property testi 
is an exception to this uniform advance. 



the referendum has been introduced upon many 
state and local issues. 

Certain events in very recent times have been 
interpreted, however, as indicative of a decline in 
democratic faith. It is asserted that the rapid con- 
centration of wealth is destroying the economic 
basis on which democracy rests, and that the sub- 
stance of power has passed or is passing from the 
masses. The forms of power, it is said, cannot 
long remain in conflict with the actual forces and 
facts, and as the organization of industry has 
become undemocratic, the organization of govern- 
ment must soon follow in the same direction. It 
is further urged that the United States has ac- 
quired a vast domain lying outside of our geo- 
graphical group, containing a population which 
can never be admitted to equal fellowship in the 
Union, but, if held at all, must be retained on terms 
of political inequality. The conclusion drawn is 
that the ideals of earlier days have been forgotten, 
and that the present tendency is away from demo- 
cratic institutions. 

Without attempting to discuss the future, for 
that lies outside the scope of an historical study, 
it may be said that down to the present time, at 
least, the tendency of American political theory 
and practice must be regarded as essentially demo- 
cratic. There is little in either the industrial or 
the colonial situation to indicate a departure 
from the line of democratic progress. It is true 



that the concentration of wealth is increasing at 
a very rapid rate, and that the legal title to much 
property is passing into the hands of a few. But 
it must be remembered that under present condi- 
tions, the increase of private possessions does not 
necessarily signify that power is passing from the 
hands of the people. On the contrary, in many 
industries the greater the growth of individual or 
corporate control, the nearer is that control to 
becoming popular control. If, for example, a rail- 
road combination should acquire all the railroad 
systems of the United States, it is highly probable 
that railroad operation would very soon become a 
government function or, at least, the situation would 
give rise to a very large measure of regulation by 
the people. What seems like the climax of indi- 
vidual or corporate control is likely to pass over 
into governmental control or regulation. The idea 
that property is an absolute and unassailable right 
of the individual and that government exists chiefly 
for the purpose of protecting this right, is no longer 
accepted as in the earlier days. On the contrary, 
the relation of property to the community is now 
emphasized, and the right of the state to defend 
its citizens against unfair competition is widely 
recognized. It is evident, then, that the concen- 
tration of wealth does not signify under present 
conditions the destruction of democratic govern- 
ment, but, on the contrary, is likely if continued 
to call out a greater extension of democratic activ- 



ity. In any event, the permanent crystallization 
of enormous wealth in the hands of any class is 
not likely to occur, since the transmission of 
property from one generation to another is in the 
hands of the people, and may readily be controlled 
by the machinery of government if such a ten- 
dency becomes threatening. Inheritance is gen- 
erally regarded as a social function, and the 
inheritance tax is a remedy which is capable of 
indefinite extension. This instrument may do for 
democracy what the law of entail did for the old 
aristocracies. We conclude, therefore, that from 
the industrial point of view there is little ground 
for believing that the present drift is away from 

It is further urged, however, that the acquisition 
of territory unfit for admission into the Union, and 
without the consent of the population annexed, is an 
indication of a defection from the principles of the 
Fathers and the settled policy of the United States. 
Reasoning from precedent, however, it appears 
that the phrase “ consent of the governed ” was 
never applied in the literal, or anything approx- 
imating the literal, sense of the term. The 
Puritans disregarded the Indians altogether, and 
consulted the preferences of the church members, 
who were the political people. The Fathers disre- 
garded the negroes and consulted the freeholders, 
to the exclusion of a large proportion of the male 
adults. Likewise the Jeffersonian and the Jack- 


sonian democracy ignored the blacks as a political 
element, refusing them not only political but even 
the most rudimentary civil rights. The emancipa- 
tion of the slaves was brought about in the course 
of a war that was fought in direct disregard of the 
principle of the consent of the governed. The 
eleven seceding states were simply held in the 
Union by force of arms, without their consent, and 
despite their most emphatic protest. From the 
point of view of the South, they were a separate 
people, and the war against them was one of con- 
quest and subjugation. 

Waiving the matter of precedent and considering 
the question as one of principle, it is evident that 
much depends on one’s political theory. If we be- 
lieve that government has no jurisdiction over men 
unless they have consented to it, and that every 
man is entitled to equal civil and political rights, 
regardless of his fitness for them, then it follows 
that to deprive any man of the suffrage for any 
cause, or any people of self-government for any 
cause, is a departure from democratic principles. 
On this basis it would be concluded that within 
the last four years democracy in the United States 
had received a decided setback. If, on the other 
hand, it is believed that liberty and rights are 
necessarily conditioned upon political capacity, 
and that the consent of the governed is a principle 
which, in the present state of affairs, cannot be 
perfectly realized, then the situation is altered. 



From this point of view, the possession of full 
political rights by every man is an ideal which 
should, as far as possible, be realized. This was 
the contemporary interpretation of the Fathers 
who framed the Revolutionary state constitutions ; 
this was the idea of Thomas Jefferson, of Calhoun, 
and of Lincoln, and it is the view taken by the 
overwhelming majority of modern political scien- 
tists. This position, it is submitted, is the only 
tenable one for modern democracy. Doubtless 
this doctrine may be perverted to despotic uses, 
but it is not so near despotism as is the opposite 
doctrine to anarchy ; for the full application of the 
doctrine of the consent of the governed and of the 
absolute equality of all, in political as well as civil 
rights at the present day, would be equivalent to 
the dissolution of every political society now exist- 
ing. Even with civilized peoples the democracy 
of the present day must of necessity be imperfect ; 
there must be in every community some exceptions 
to the general law of political equality. 

It appears, then, that whatever may be said of 
the opportuneness of the new movement in time 
or place, the charge that it is a departure from 
democratic ideas has no basis in the principles of 
political science. Democracy does not demand 
that barbarians be admitted to equal political rights 
with peoples long trained in the art of self-govern- 
ment, nor, on the other hand, does it require that 
democratic states leave the work of political civil- 


ization to countries where constitutional liberty is 
unknown, or to states possessing a less degree of 
constitutional liberty than their own. It cannot 
be an article of democratic faith that democratic 
states must stand by and allow the despotic states 
of the world to extend a despotic system over the 
weaker nations of the earth. 

Our conclusion is, then, that the charge that 
democracy is on the decline in the United States 
is not proven. There are certain tendencies, 
which, if taken alone, might seem to point in such 
a direction ; but when we consider as a whole the 
numerous tendencies of which democracy is made 
up, it is found that there are other and counter- 
balancing influences, equally important and sig- 
nificant. Hence, it cannot be said that the broad 
tendency of American political life is away from 


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Abolitionism: premises in theory 
of, 207; typical platform of. 207: 
attitude toward slaveholders, 209 ; 
relation to no-government theory, 
209; historical significance of. 

Adams, John: theory of, during the 
Revolution, 43, 48, 52, 69; basis 
of later theory, 124 ; criticism of 
pure democracy, 125 seq.; doc- 
trine of aristocracy, 130 seq.; 
theory as to balance of powers, 
136 seq.; comparison of, with 
Samuel Adams, 135; fundamental 
principle in creed of, 140; com- 
parison of, with Jefferson, 162. 

Adams, Samuel : on the right of 
revolution, 56; on purpose of 
the state, 62; on monarchy, 69; 
comparison of, with John Adams, 
135 * 

Anti-slavery : radical Abolitionist 
theory, 206; the philosophical 
argument, 217 ; Lincoln's theory, 
221 ; comparison with pro-slavery 
theory, 248. See Abolitionism. 

Aristocracy : denunciation of, in 
1776, 75; Adams’s defence of, 130 
seq,; principal features in aris- 
tocracy, 131; recognition of, in 
government, 132 ; hereditary no- 
bility, 133; John and Samuel 
Adams on, 135; Jefferson on 
natural and artificial aristocracy, 
155; decline of, during Jack- 
sonian period, 184; Lincoln’s 
criticism of, 224 ; pro-slavery 
theory of, 236. 

Balance of powers: Paine’s oppo- 
sition to, 73 ; doctrine of, in 1776, 
79; development of, in Revolu- 
tionary state constitutions, 80; 
Federalist's doctrine of, 107; 
John Adams’s theory of, 136; re- 
adjustment of, during Jacksonian 
epoch, 184; criticism of tripartite 
division by Goodnow, 323. 

Bledsoe, A. T.: on nature of lib- 
erty, 235. 

Boucher, J. : on consent of the gov- 
erned, 64 ; on equality, 65 ; in- 
dorsement of divine-right theory 
by, 6$; on absoluteness of gov- 
ernment, 66; opposition to right 
of revolution, 67, 

Brownson, O. A.: on constitution 
of state and of government, 292' 
on location of sovereignty in the 
United States, 295. 

Burgess, J. W. : theory of, as to 
national state, 299; theory of sov- 
ereignty, 300 ; criticism of doctrine 
of federal state, 300; criticism of 
theory as to state of nature, 308 ; 
criticism of theory of natural 
rights, 310; concept of liberty, 
313; theory of relation of Teu- 
tonic races to political civiliza- 
tion, 313 ; doctrine as to function 
of the state, 317 ; distinction be- 
tween state and government, 325; 
application of distinction to prob- 
lem of sovereignty, 326. 

Calhoun, J. C. : defence of legislai* 
five power, 181; repudiation of 




natural-right theory, 23a , doc- ' 
tnne as to nature of liberty, 234, \ 
on relation between superior and , 
inferior races, 239, criticism of 
theory held by the Fathers, 268 , 
on government as a social neces- 
sity, 269 on the function of a 
constitution, 270, on responsi- 
bility of government, 270, doc- 
trine as to despotism of the 
majority, 271, on difficulty of 
restraining majority, 272, theory 
of "concurrent majority, 273, 
advantages urged for "concur- 
rent majority," 274, objections 
against answered, 275, constitu- 
tional doctrine of nulhhcation, 
276, doctnne of secession, 278 
seq. ; on the indivisibility of sov- 
ereignty, 279 , on original sover- 
eignty of states , on relation 
between central and state gov- 
ernments, 280 , on distinction 
between government of United 
States and a league, 281 , com- 
parison of, with Webster, 287. 

Centz, P. C see Sage. 

Channmg, W. E : anti-slavery 
theory of, 218 seq , on man as 
a person, 218, on the rights of 
personality, 2ig , on slavery as 
subversive of personal rights, 219 , 
on slavery and democracy, 220 

Chase, S P. theory of a free con- 
stitution, 222 

Church and State: Puritan theory 
of relation between, 5,7, Revo-*^ 
lutionary attitude toward, 86, 
removal of religious restrictions 
dunng Jacksonian epoch, 193, 
disestablishment of churches, 194, 
Jefferson s theory as to church 
establishments, 195 , Madison's 
theory on, 195. 

Clay, Henry cnticism of Jack- 
son s use of prerogative, x8o. 

bmmons, John R sociologicai 
discussion of sovereignty by 


Connecticut, Fundamental Orders 
of, 17 

Contract formation of contracts 
by Puritans, 16, Puritan theory 
of, 18 , T. Hooker on, 20 , theory 
of, in 1776, 50 , Jefferson on 
necessity of preserving principle 
of, 148 , reactionary tendency 
regarding, 200, repudiation of 
social contract by Cooper, 231 , 
by Calhoun, 232, application of 
theory of contract to nature of 
Union by Madison, 263, by 
Jackson, 264, by Tucker, 266, 
Webster’s application of contract 
idea to genesis of Union, 284 
Story's doctrine as to, 285 , 
Lieber’s criticism of social-con- 
tract theory, 307, Burgess’s 
repudiation of doctnne of, 

Cooper, T criticism of natural- 
right theory, 231. 

Cotton, J on the nature of the 
church, 8 , on relation of church 
to state, 10, on freedom of con- 
science, 13 , on democracy, 15 

Davis, Jefferson on nature of the 
Union, 283. 

Declaration of Independence con- 
temporary interpretation of, 88 , 
Jefferson s originality in framing, 
146, Lincolns interpretation of, 
222 , Calhoun s interpretation of, 

Democracy elements of, among 
Puritans, 16, 27, evidences of, 
among colonists, 32 , Patriot 
theory of, 47 application of 
theory in formation of govern- 
ments, 76, distrust of, m Consti- 
tutional Convention, 99 ; reaction 



against, evident 103; Federalist, The: historical basis 

J. Adams’s criticisms on, i^^seq.; 
Jeffersonian democracy, 1421^^.; 
Jacksonian democracy, vj^seq,; 
anti-slavery theory of effect of 
slavery on, 220; pro-slavery 
theory as to effect of slavery on, 
239; recent studies in, 327; sum- 
mary of democratic development, 
342; whether the United States is 
drifting away from, 343. 

Dickinson, John : on natural rights, 
48 ; on taxation and representa- 
tion, 52; on right of revolution, 

Divine right : Boucher's theory of, 

Eliot, C. W. : on American con- 
tribution to civilization, 328. 

Eliot, John: on Scriptural basis for 
Puritan system, 3, 

English political ideas : influence 
of, on Fathers, 47, 89 ; on Ameri- 
can theory in general, 337. 

Equality : Puritan theory of, 25 ; 
Revolutionary theory of, 47 ; 
Boucher’s criticism of, 65; Ad- 
ams's denial of abstract love of, 
127: Abolitionist theory as to, 
207; relation of, to personality, 
218 ; pro-slavery doctrine re- 
specting, 230, 248 ; comparison 
between pro- and anti-slavery 
theories as to, 248; Burgess’s 
theory of political inequality of 
races, 314. 

Executive: conflict between colo- 
nial assembly and, 34; subordi- 
nate position taken in Revolu- 
tionary state governments, 80; 
Federalist theory regarding need 
of energy in, 113; Adams's doc- 
trine as to place of, 138; revival 
of executive during Jacksonian 
epoch, 182 seq. 

for theories of, loi, 119: doc- 
trine as to relation betweet 
democracy and size of state, 104; 
definition of a republic, 106; 
theory of separation of govern- 
mental powers, 107 ; doctrine as 
to legislative power, no; theory 
of bicameral legislature, iii; on 
basis of representation in legis- 
lature, 112; on size of legisla- 
ture, 1 12; theory as to energetic 
executive, 113; theory as to 
judiciary, 115; on relation be- 
tween liberty and authority, 116; 
on bills of rights, 117; on true 
guarantee of liberty, 119; de- 
scription of federal Union by, 
254; explanation of mixed char- 
acter of Union, 254; doctrine of 
divisibility of sovereignty, 255. 

Fisher, S. G. j quoted, 291. 

Fitz-Hugh, George: on substitu- 
tion of religious truths for politi- 
cal theory, 243 ; on undesirability 
of liberty, 244; on slavery as 
best basis for society, 244; on 
slavery and socialism, 245. 

French political theory: influence 
on Jefferson overestimated, 91, 
167; influence of Montesquieu, 
91 ; general influence on Ameri- 
can political ideas, 337. 

Garrison, W. L. : on " gradualism,” 
208 ; no-govemment doctrine of, 
209; theory of emancipation, 215. 

German political theory: influence 
on new school of political science 
in United States, 306; nature of 
influence, 338. 

Giddings, F. H. : restatement of 
natural-rights theory by, 310; on 
relation of democracy to colonial 
government, 328. 

Godkin, E. L. : on democracy, 328. 



Goodnow F I-: 3^5 m-: summary of these 

division’ of governmental powers, changes 321. 

2 theory of administration, Inequality as a basis for democ- 
' on place of political racy, 240. See Equality, 
parties in governmental system, 

^ Jackson, Andrew significance of 

Government distinction between election and administration of, 
state and, 324 seq,, Lieber on, 178, 182, development of execu- 
225, Burgess on, 325, Wilson tive power by, 178 , his theory of 

on, 3271 Willoughby on, 327, rotation in office, 185 , theory as 

function of government during to nature of the Union, 264 
Revolutionary period, 61 , Lie- Jameson, J. A. on different types 
ber’s doctrine as to function of of constitutions 291 , on location 

government, 315, Woolsey on, of sovereignty in United States. 

316, Wilson on, 317, Burgess 293 , on sovereignty of nation, 

on, 317, Willoughby on, 319, 294 

attitude of economists toward, Jefferson, Thos. general consider- 
319; comparison of early with alions respecting, 143, Declara- 
later theory of governmental! tion of Independence and, 146, 
functions, 321 , Ross on limits 1 on natural nghts, 147 , on the 
of state interference, 331 consent of the governed, 148 , on 

principle of consent as main- 
Harailton, A on natural rights, tamed by revolution, 149, on 

48, doctrines developed in principle of consent as mam- 

Federahst, 103 seq tamed by periodical revision of 

Hammond, J. H quoted, 238. constiiuiion, 150, on exact period 

Hereditary succession Pune’s op- for revision, 151, theory as 10 
position to, 71, Revolutionary monarchy, 153 , theory as to aris- 

state constitutions on 75, John tocracy, 155, on natural and 

Adams not averse to, 133 artificial aristocracy, 155 , on 

Hooker, Thos. theory of contract democracy, 157 rry., definition of 

as basis of religious and political republic by, 157, democratic 

society, 20. program of, 15B, on educa- 

Hopkins, Stephen on rights of En- tion and democracy, 159, on 

gUshmen, 44, on taxation and local government and democ- 

representation, 53. racy, 159, on subordination of 

Hosmer, W. on liberty, 208. military to civil authorities, 160, 

Hurd, J. C on sovereignty as a essential principle in democratic 

matter of fact, 292, on sover- theory of, 163, comparison with 

eignty of “states unite^,” 295, J Adams, 164, application of 

democratic principles by, 164, 
Individualism in political theory on agricultural population as 

ofRevolution, 95, in Abolitionist basis for democracy, 166, 

theory, 215 , m philosophical at- sources of theory of, ; rank 
gument against slavery, 217, re- of, as political theorist, 171 , sig- 
cent change iti attitude toward, nificance of career of, 171 , aris- 



tocratic elements in democracy 
174; on relation between 
church and state, 195. 

Judiciary: position accorded in 
Revolutionary state constitutions, 
80 ; theory of Federalist respect- 
ing, 115; democratization of. 197. 

I^ent, Chancellor: argument of, 
against universal suf&age, 189. 

Legislature, conflict of, with colo- 
nial governors, 34 ; predominant 
position given in Revolutionary 
state constitutions, 81 ; Federal- 
ist doctrine respecting, no; 
Adams's theory of, 138 ; defence 
of, against executive by Webster, 
^79 1 t>y Clay, 180 ; by Calhoun, 
iSi ; loss of power during Jack- 
sonian epoch, 179 seq. 

Liberty: Puritan theory of, 23; 
Revolutionary doctrine as to, 49 
seq. ; constitutional measures de- 
vised by Fathers to secure, 76; 
Federalist theory as to guaranty 
of, 119 ; anti-slavery doctrine re- 
specting nature of, 206, 218, 222, 
; pro-slavery idea of, 234. 
comparison of pro- and anti- 
slavery theories respecting, 235, 
248; modem conception of, 312; 
Burgess's doctrine of, 312. 

Lieber, Francis: on difference be- 
tween “ nation ” and *' people," 
296; influence of, on American 
political theory, 305 ; criticism of 
state of nature by, 307 ; doctrine 
of, as to natural rights, 308 ; dis- 
tinction drawn by, between Galli- 
can and Anglican liberty, 309, 

Lincoln, A. : anti-slavery theory of, 
221 seq.; interpretation of Dec- 
laration of Independence, 222; 
on Declaration of Independence 
as an ideal, 223 ; on negro rights. 

223: on danger in pro-slaveiy 
theory, 224 ; on capitalistic theory 
of society, 224 ; theory as to place 
of laboring class, 225; on pres- 
ervation of the Union, 291, 

Locke, John: influence of, on 
American Revolution, 89; con- 
trast with Jefferson, 170. 

Lowell, A. L.: on democracy and 
the constitution, 329. 

Madison, James: quoted in dis- 
cussions of Federalist^ 103 seq.; 
theory of separation of church 
and state, 195; doctrine of di- 
visibility of sovereignty, 259; on 
Union as a binding compact, 

Majority, ruleof: Jefferson on, 158; 
tyranny of, denounced by Cal- 
houn, 271; theory of concur- 
rent " majority proposed by 
Calhoun, 273. 

McDuffie, Gov.: on slavery, 238, 
» 39 - 

Monarchy : opinion of, before 
Revoludon, 69; Paine’s theory 
of, 70 ; elimination of, from 
American political system, 75; 
Adams’s theory as to function 
of, 138 ; Jefferson’s critidsms 
on, 153. 

Moses, B. J. : on demo^acy and 
social growth, 328. 

Mulford, E. : on “historical” and 
“enacted" constitutions, 292; on 
sovereignty in United States, 294. 

Nationalism : Webster’s argument 
concerning, 284 seq»: later de- 
velopment of theory of, 289^07.; 
summary of American theory 
r^^arding, 302. See Unioiii Se- 
cession, Nullification. 

Nature, state of: Revoludonary 
theory regarding, 47: theory 



repudiated by Cooper, 231; by 
Calhoun, 232,' by recent think- 
ers, 307 seq. 

Negro: sec Slavery, Anti-slavery, 

Non-resistance: Quaker practice 
of, 30 ; Garrison’s theory of, 209; 
practical program of, 21 1; Tho- 
reau's discussion of, 213. 

Nullification . Calhoun’s theory of, 
268 seq. ; philosophical prole- 
gomena to, 268; despotism of 
majority, 271; doctrine of “con- 
current majority,’’ 273; advan- 
tages of, 274 ; objections answered, 
^5 ; constitutional form of doc- 
trine, 276. 

Paine, Thos. ; theory of social con- 
tract, 50; opinion of, as to mon- 
archy, 70 ; on hereditary succes- 
sion, 71 : on folly of checks and 
balances, 73; Jefferson’s opinion 
of, 170, 

Parties, place of, in American po- 
litical system, 323. 

Penn, William ; theory of govern- 
ment, 29; on democratic spirit 
in America, 33, 

People : Puritan political people, 5 ; 
political people in 1776. 87; 
“ people ” in Jefferson’s day, 
175 1 expansion of concept of, 
during Jacksonian period, 187; 
obscurity of term in 1789, 257; 
Calhoun’s interpretation of 
“people of the United States,” 
2^ seq, ; Webster's interpreta- 
tion, 284 seq. ; sovereignty of, see 

Property : protection of, as purpose 
of government, 6a; as qualifica- 
tion for suffrage, 84 ; as qualifica- 
tion for office, 85 ; abandonment 
of, as qualification for suffrage 
and office, 193. 

Puritans, The ; basis of system oi 
z; theocratic elements in, 5; 
theory of, concerning relation 
between church and state, 7, 
democratic elements in, 16, 27; 
contracts made by, in formation 
of church and state, 17 ; idea of, 
regarding liberty, 23 ; theory of 
equality held by, 25. 

Quakers : political ideas of, 27, 

Revolution, right of: Mayhew on, 
55; S. Adams on, 56; Dickinson 
on, 56 ; state constitutions on, 58 ; 
Jefferson’s indorsement of, 149; 
claimed for states, 266. 

Revolution, period of: historical 
considerations respecting, 38 ; 
constitutional theory of patriots 
during, 42; doctrine of natural 
rights, 47 ; theory of social con- 
tract, 49; theory of popular sov- 
ereignty, 53; theory of right of 
revolution, 55; theory as to pur- 
pose of government, 60; Loyal- 
ist theory, 63 ; idea of monarchy 
and aristocracy, 70; doctrine of 
delegated powers, 76; of weak 
government, 77 ; of separation of 
powers, 79; as to short terms of 
office, 82 ; qualifications for suf- 
frage during, 84; qualifications 
for office during, 85; relation 
between church and state, 86; 
source of ideas of, 88. 

Rights, civil ; demanded for negro, 
223; pro-slavery theory regard- 
ing. 237- 

Rights, natural : theory of, in 1776, 
471 Jefferson on, 147 ; based on 
human personality, 218 ; repudi- 
ated by Cooper, 232 ; repudiated 
by Calhoun, 232; interpretations 
of, to justify slavery, 233 seq.; 
Lieber’s theory of, 309 ; Bui^ess’s 



criticism of, 310; Willoughby's 
criticism of, 310. 

Rives, W. C. : on division of 
sovereignty in United States, 

Ross, E. A. : study of social con- 
trol, 330; on grounds of control, 
330; on means of control, 330; 
on limits of control, 331. 

Rotation in office: doctrine of, in 
1776. 82; Jackson’s theory con- 
cerning, 185 ; Taylor on, 186, 

Sage, B. J. : on nature of the 
Union, 283, 

Sawyer, G. S. : quoted on slavery, 
237 - 

Secession : Tucker’s theory of, 266 ; 
Calhoun’s doctrine of, 278 seq.: 
Madison's opinion regarding, 
263; Jackson’s attitude toward, 
264; Webster’s idea of, 284; 
recent theory respecting, 289. 
Se< Calhoun. 

Seward, W, H. : doctrine of 
“higher law," 212. 

Slavery: theory of radical Aboli* 
tionists regarding, 205 ; philo- 
sophic argument against, 217; 
Lincoln’s attack on, 221 ; basis 
of pro-slavei7 argument, 227; 
inequality as necessitating, 229; 
natural rights and, 231; theory 
of liberty in relation to, 234 ; as 
natural relation between superior 
and inferior races, 236; relation 
of democracy to, 239 ; ultra- 
conservative defence of, 243; 
comparison between pro- and 
anti-slavery theories, 248, 

Socialism : Fitz-Hugh on relation 
between slavery and, 244; atti- 
tude of recent theorists toward 
individualism, 315 s^q. 

Sovereignty : of people in 1776, 
53; Federalist doctrine as to 

divisibility of, 255; doctrine of 
U. S. courts as to divisibility of, 
253 : Madison’s theory as to 
division of, 259; Rives’s state- 
ment as to division of, 261 ; Cal- 
houn's theory of indivisibility of, 
279; Calhoun on location of 
sovereignty in U. S., 279; Cal- 
houn’s distinction between sov- 
ereignty and its attributes, 280; 
Webster’s doctrine regarding lo- 
cation of sovereignty in U. S., 
284; location of sovereignty by 
later Nationalists, 293; doctrine 
of sovereignty of nation, 294; 
doctrine of sovereignty of “ states 
united,” 295; Nationalist theory 
of indivisibility of sovereignty, 
1^8 ; Burgess’s theory as to, 300; 
application of Burgess’s theory to 
federal state, 300; relation of 
distinction between state and 
government to sovereignty, 326; 
sociological discussion of sov- 
ereignty, 330. 

State ; see Government, Social 
Contract, Natural Rights. 

Stephens, A. H. : on slavery as 
proper basis for a republic, 239; 
on nature of Union, 283. 

Story, Joseph : on contract theory, 
201 ; on double signification of 
sovereignty, 262; on Constitu- 
tion as a law, 285. 

Suffrage : theory and practice of, 
in 1776, 84; expansion of, dur- 
ing Jacksonian period, 187 
seq,; defence of property qualifi- 
cation, x88; plea for universal 
suffrage, 191. 

Taylor, John: on aristocaracy, 144; 
on rotation in office, 186. 

Taxation: in relation to repre- 
sentation, 42; constitutional 
phase of taxation without repie- 



sentation, 4s ; political phase of, ' 


Tboreau, H. D. : opinion of gov- 
ernment, 213, individualistic ten- 
dencies of, 214; theory of free 
government, 215. 

Tories : typical theory of, 63. See 

Tracy, Destutt de : works of, rec- 
ommended by Jefferson, 168. 

Tucker, H. St Geoi^e: applica- 
tion of social-contract theory to 
nature of Union, 266. 

Union, nature of; theory respect- 
ing, in 1789, 253; Madjson’s doc- 
trine of, 259; Jacksons theory of, 
264 ; Tucker's social-contract 
theory of, 266; Calhoun’s doc- 
trine of nullification, 268; Cal- 
houn’s doctrine of secession, 278 ; 
Webster’s nationalist theory, 284 ; 
later nationalist theory, 289; Bur- 
gess's doctrine of, 299 ; summary 
of theories regarding, 30a. 

Van Zandt, case of: doctrine of 
Chase tn, azx 

Walker, F, A. : on tendency away 
from extreme individualism, 32a 

Ward, L. F.: doctrine of socioc- 
racy, 329. 

Wayland, Francis : anti-slavery 
theory of, 218 seq*; on man as 
a person, 218 ; on rights of per- 
sonality, 2x9; on slavery as sub- 
versive of personal rights, 219 ; 
on slavery and democracy, 220. 

Webster, Daniel: theory of legis- 
lative power as guardian of lib- 
erty, 179 ; theory as to nature of 
the Union, 285; on constitution 
as a law, 284 ; as representative 
of national spirit, 287; compar- 
ison of, with Calhoun, 287* 

Williams, Roger : on nature of the 
church, 7; on relation between 
church and state, 9. 

Willoughby, W. W. : criticism of 
natural rights by, 310’ doctrine 
as to function of government, 319 ; 
on composite state, 301. 

Wilson, Woodrow : on function of 
government, 317. 

Woolsey, T, D. : on function of 
government, 316.